The free response portion of a performance evaluation for Ann Arbor Downtown Development Authority executive director Susan Pollay. The DDA board appears to have decided her salary increases in FY 2013 and FY 2014 in a way that did not conform with the Open Meetings Act.

The procedure used this year by the board to award Pollay a salary increase appears to have conformed completely with the requirements of Michigan’s Open Meetings Act (OMA).

However, that procedure was different from the one used to award raises to Pollay in each of the two previous years.

Those raises worked out to 8% and 6.7%, respectively. In each of the two previous years, the decision to award Pollay those raises appears to have been made in a way that is contrary to the most basic requirement of Michigan’s OMA: “All decisions of a public body shall be made at a meeting open to the public.”

That conclusion is based on records produced by the DDA to The Chronicle in response to requests made under Michigan’s Freedom of Information Act (FOIA), as well as records the DDA was not able to produce.

The analysis below begins with an overview.

Overview

Responding to a request made by The Chronicle under Michigan’s FOIA, the only documentation the DDA produced for board authorization of the two previous years’ raises was two letters. The letters were sent by former board chair Leah Gunn to the city of Ann Arbor’s human resources staff – dated Oct. 9, 2012 and June 27, 2013.

Those letters don’t appear to describe the salary decisions by the board in ways that meet basic OMA requirements. Specifically, OMA requirements do not appear to have been satisfied for either the board as a whole, or for a subquorum committee of the board – which DDA board members may have assumed was acting lawfully on behalf of the entire board.

By way of contrast, this year the board voted on the question of a salary increase for Pollay at its regular meeting of July 2, 2014. That vote, in open session on a written resolution, came after a roughly 15-minute closed session held by the board on Pollay’s performance review. A personnel matter like a performance review – if the employee requests it – is one of the limited number of reasons under Michigan’s OMA that a public body can bar the public from a meeting. That procedure, including the vote in open session by the board, is familiar from The Chronicle’s coverage of other public bodies. It’s a procedure that conforms with the OMA.

However, for neither of the two previous years did the DDA board discuss at any of its meetings the question of salary increases for its executive director. Nor did the board hold a closed session on a personnel matter during that period. Nor did the board vote on those salary increases at any of its meetings.

Some DDA board members might have assumed the board’s executive committee had authority to act on the board’s behalf in deciding executive director salary questions. But in response to a request made under Michigan’s FOIA, the DDA was not able to produce any records with documentation that the performance review of its executive director and recommendations on salary increases have been specified by the board as duties of the executive committee.

And even if the executive committee had been tasked by the board with those duties, the DDA was unable to produce any records of minutes for its executive committee meetings during the relevant time period. Further, it’s not clear that the executive committee posted adequate public notices of its meetings during this period, or that the typical location of executive committee meetings – the executive director’s personal office – can be considered accessible to the public under the definition of the OMA.

Concerns raised by the material that was provided to The Chronicle under Michigan’s FOIA are not limited to questions about the openness of decision-making procedures – as measured against the requirements of the OMA. The written performance reviews of Pollay are heavily weighted towards general expressions of support and commentary on Pollay’s personality, instead of providing important critical feedback on performance.

Laid out in detail below are the arguments that the decisions to award Pollay a raise in two previous years – for FY 2013 and FY 2014 – were made in a way that violated the OMA. The analysis concludes with a note on the oversight role of the city council with respect to the DDA.

Salary Decisions Made: FY 2013, FY 2014, FY 2015

At its July 2, 2014 meeting, the DDA board voted to award its executive director, Susan Pollay, a 5% pay raise for fiscal year 2015, which started July 1. That brought her annual compensation to $114,570. During board deliberations on the resolution, long-time DDA board member Roger Hewitt mentioned that Pollay had received good raises the two previous years.

Those raises were reflected in the salary history that deputy DDA director Joe Morehouse forwarded to current board chair Sandi Smith in late June of this year. That salary history is as follows:

Fiscal YR       Salary   % Increase
FY 2014    $109,114.40   6.70%
FY 2013    $102,263.20   8.00%
FY 2012     $94,689.40   0.00%
FY 2011     $94,689.40   0.00%
FY 2010     $94,689.40   0.00%
FY 2009     $94,689.40   0.00%
FY 2008     $94,689.40   0.00%
FY 2007     $94,689.40   0.00%
FY 2006     $94,689.40   0.00%

-

The July 2, 2014 DDA board deliberations framed that salary history as the equivalent of only a 1.9% annual raise since 2006. Board members indicated an interest in raising Pollay’s salary in future years, to bring it into alignment with the mid-point of the salary range for her city of Ann Arbor “Level 2″ position. That midpoint is $126,000 – in a range from $95,340 to $157,312.

City administrator Steve Powers cast the sole vote of dissent on the board’s July 2 action to increase Pollay’s salary by another 5% in FY 2015. He felt that 3% was more appropriate. He also expressed a desire to see a more robust evaluation process in the future.

Expressed as a percentage, the total amount of Pollay’s pay increases over the last three years comes to nearly 21%. How does that compare to other employees at the city? Powers responded to an emailed query from The Chronicle with the following data:

FY 2015   3%
FY 2014   3%
FY 2013   one-time $1,000
FY 2012   0%
FY 2011   0%

-

Previous Board Action

When Hewitt mentioned at the July 2 DDA board meeting that Pollay had received raises for FY 2013 and FY 2014, that was likely a revelation to anyone outside the DDA board.

The Chronicle’s coverage of the DDA since 2008 – which includes reporting on all DDA resolutions approved by the board – does not reflect any board discussion or votes on pay raises for Pollay during that period. A machine search of the DDA’s board meeting minutes available on the DDA’s website produces a single search result for the phrase “performance evaluation” – from 1997, which is a year after Pollay was hired as DDA executive director.

On July 2, 2014 The Chronicle made a records request under Michigan’s FOIA that included “all records or documentation showing authorization – by the DDA board, a DDA committee, or any member of the DDA board – for adjustments to the Ann Arbor DDA executive director’s salary over the past two years, adjustments referenced by Roger Hewitt at the board’s July 2, 2014 meeting.”

Based on the DDA’s July 10 response to that request, only two records are in the possession of the DDA that document any authorization for Pollay’s salary increases in FY 2013 and FY 2014. The two records are letters sent by the board chair at the time, Leah Gunn, to city of Ann Arbor human resources staff – dated Oct. 9, 2012 and June 27, 2013.

What the DDA did not produce in response to the request made under Michigan’s FOIA were any board resolutions or minutes from board meetings reflecting a decision by the board to increase Pollay’s salary in FY 2013 or FY 2014. The DDA also did not produce any resolutions by a committee with the authority to act on the board’s behalf, or any minutes from such a committee that reflect a committee decision to increase Pollay’s salary in FY 2013 or FY 2014. [.pdf of records from July 2, 2014 FOIA request]

What about Gunn’s letters? They do not indicate in an explicit way when the board as a whole might have made its salary decisions in FY 2013 and FY 2014.

Based on the records that the DDA did not produce, as well as the records that the DDA did produce (Gunn’s two letters), it’s fair to conclude that if the board as a whole did decide to increase Pollay’s salary in the two previous years, then the board made those decisions in a way that did not conform with the most central requirement of Michigan’s Open Meetings Act: “All decisions of a public body shall be made at a meeting open to the public.”

However, the first of Gunn’s letters, written three months after she was elected DDA board chair, refers in a general way to the executive committee of the DDA board, and its role in Pollay’s performance evaluation and salary adjustment. It’s important to consider, for the sake of argument, the possibility that the board’s executive committee might have acted lawfully on behalf of the board, and that the executive committee acted in a manner that was consistent with the OMA.

Previous Executive Committee Action

Some background on the executive committee is presented first, before evaluating possible decisions by the committee – with respect to the OMA and the DDA’s bylaws.

Previous Executive Committee Action: Background

The executive committee of the DDA board is a subquorum subset of its members – the chair of the board, the vice chair, secretary and treasurer. Ex officio non-voting members of the executive committee are the executive director and the immediately preceding board chair.

So during the most recent year in which Leah Gunn chaired the board – from July 2012 through June 2013 – the executive committee consisted of Gunn, Sandi Smith (vice chair), Keith Orr (secretary) and Roger Hewitt (treasurer). The two non-voting members of the executive committee were Pollay and Bob Guenzel.

When a subquorum committee of a public body effectively makes decisions on behalf of the body, then according to a Michigan attorney general opinion from 1998, that committee is itself considered as a public body under Michigan’s Open Meetings Act. [.pdf of AG Opinion #7000]

So to the extent that the executive committee might have made the decisions on salary increases for Pollay in FY 2013 and FY 2014, those decisions were required to have been made in accordance with OMA requirements – including those on noticing meetings to the public and on maintaining minutes for its meetings.

Previous Executive Committee Action: OMA Noticing Requirements

The letter from Gunn about the FY 2014 salary increase does not mention the executive committee, but rather only the board. However, Gunn’s letter about the FY 2013 salary increase for Pollay describes a meeting of the executive committee in a way that at least hypothetically could have been held in conformance with the OMA – a meeting at which the committee might have made a decision to authorize a pay increase for Pollay for FY 2013.

From Gunn’s Oct. 9, 2012 letter:

During the course of this work, I spoke with every member of the board and I brought their feedback to the October meeting of our DDA executive committee where we met with Susan to discuss their comments (which by the way were unanimously excellent). We are in complete agreement about adjusting the salary of our executive director to $102,264 from her current salary.

Although Gunn does not give the exact date of the October executive committee meeting, it is possible to infer that it took place on the same date as the DDA board meeting that month, which fell on Oct. 3, 2012.

That inference is based on the kind of posting that the DDA has used this year for its annual meeting calendar of the full board. In that posting about the full board meeting schedule, the executive committee is mentioned. It’s worth noting that in contrast, other DDA board committees have their own separate postings of meeting schedules, with the name of the committee prominently stated in the headline/title of the page. The DDA’s position is that this type of posting of the executive committee meetings complies with the OMA posting requirements. [.pdf of DDA Feb. 25, 2014 response letter from DDA]

The first occasion on which The Chronicle attended a scheduled meeting of the executive committee was March 5, 2014. The meeting was held in Pollay’s office. There is no signage at the DDA offices that would alert someone to the fact that the executive committee meets there, as opposed to the board’s meeting room. The board’s meeting room is immediately apparent on exit from the elevator that opens onto the third floor of 150 S. Fifth, where the DDA rents office space. The DDA’s management assistant, Jada Hohlbrook – who staffs a reception desk – directed The Chronicle to the specific location of the executive committee meeting, which requires a couple of turns to arrive at Pollay’s office at the back of the DDA suite.

The March 5 meeting was attended by only one voting member of the committee – Keith Orr. The following month, on April 2, 2014, attendance was perfect. A member of the public, Changming Fan, attended the April 2 meeting. When he arrived at the doorway to Pollay’s office, executive committee member Roger Hewitt advised him that he could not stay, as it was a meeting only for the executive committee of the board. If Hewitt thought the public could be excluded from the meeting, it’s not clear why he did not attempt to exclude The Chronicle – already sitting in plain view. In any event, Pollay told Hewitt that executive committee meetings were open to the public. Changming Fan and The Chronicle remained through the end of the meeting.

It’s fair to conclude that the conditions under which the executive committee meets are at least somewhat dubious with respect to satisfaction of OMA requirements.

The next part of this analysis focuses on issues that are clearer cut.

Executive Committee Action: OMA Requirements on Minutes

Not in doubt is the fact that no DDA executive committee minutes were kept for the period from February 2010 through February 2014 – the period during which the executive committee might have made decisions on increasing the executive director’s salary. That conclusion is based on the DDA’s response to a FOIA request made by The Chronicle on March 5, 2014. That request asked the DDA to produce, among other items, the executive committee meeting minutes for January 2008 through March 2014. In its March 11 cover letter responding to the March 5 request, the DDA indicated that only the minutes for “2008 to 2010″ were included. The most recent minutes provided were those from January 2010. [.pdf of DDA response to March 5, 2014 FOIA request]

Starting with the April 2, 2014 board meeting, after a gap of more than four years, the DDA began producing executive committee minutes for approval. That’s an implicit recognition, possibly on prompting from The Chronicle, that the executive committee is actually required under the OMA to keep minutes – if it is acting on behalf of the board as a whole. That requirement applies, even though the executive committee is a subquorum set of board members. [.pdf of AG Opinion #7000].

Let’s assume for the sake of argument that the DDA’s position is that the executive committee acted twice on behalf of the full board to increase the executive director’s salary during the period of July 2012 through June 2013. On that assumption, the fact that no minutes have been produced for the meetings during which those decisions were made is an ongoing violation of the OMA. And action could be taken in Washtenaw County’s 22nd circuit court to ask that court to enjoin the DDA against this ongoing OMA violation by ordering the DDA to produce minutes for those meetings.

Possibly a more significant question, however, is whether the executive committee of the DDA board is even empowered to act on behalf of the DDA board with respect to executive director salary issues.

Executive Committee Action: Power to Act?

According to the DDA bylaws, the executive committee could be empowered to make decisions on behalf of the board about the executive director’s salary adjustments – if it were a duty specified by the board. From the bylaws:

The executive committee shall fix the hours and place of meetings, make recommendations to the board, and shall perform such other duties as specified in these by-laws or as may be specified by the board.

The bylaws themselves don’t assign the duty of deciding the executive director’s salary to the executive committee. And in a July 18, 2014 response to a July 13, 2014 request from The Chronicle under Michigan’s FOIA, the DDA indicated that it had no records that documented the board’s specification of executive director performance review or salary recommendation as duties of the executive committee. [.pdf of July 18, 2014 DDA response to FOIA request]

So even if the executive committee made two decisions on the executive director’s salary sometime between July 2012 and June 2013 – undocumented by any meeting minutes – it’s not clear that the committee was even empowered under the DDA’s bylaws to make those decisions.

Executive Director Performance Evaluations

Written performance evaluations of Susan Pollay by board members from 2006 to the present were included in the response to The Chronicle’s July 2, 2014 request under Michigan’s FOIA. [.pdf of records from July 2, 2014 FOIA request]

General highlights include the fact that the evaluation form provides suggestions for phrases to be used in open-ended description – all positive:

(sample ideas you can use in your comments:)
• is accountable
• is able to motivate/lead her staff
• is willing to try new ideas, methods
• is an important resource to downtown stakeholders
• is knowledgeable in his/her field
• makes decisions on her own
• completes assignments on time or earlier
• responds accurately/quickly to information requests
• remains cool despite challenges
• maintains appropriate sense of humor
• gives credit to others when deserved
• puts in the extra hours and effort to get the job done
• speaks/communicates well flexibly adapts to changing priorities
• demonstrates dedication to the DDA mission
• effectively uses resources/consultants

For the free-response portion of the evaluations, board members in many instances appear to have copy-pasted from that set of suggestions – either wholesale or in part.

With respect to the objective scoring portion of the form, board members have in many cases simply filled in the objective scoring portion of the form with the maximum score for the first few items (15). They have then “auto-filled” the rest of the items – apparently not noticing that the maximum score for items at the end of the list is a different number (10).

It’s also striking that some board members seem to have filled out the forms in an informal manner. One respondent offered “Mary Poppins” as the entire text of the written review; another simply stated “The goddess always does a great job.”

The set of one-page evaluations provided to The Chronicle also includes some that are apparent duplicates with respect to content – even though the sheets of paper that were scanned for The Chronicle are different. An example of that is the “goddess” evaluation. That evaluation appears twice in the set – but only one of the two scanned pages includes the handwritten year “2011″ at the top of the page.

In this context it’s worth noting that city administrator Steve Powers’ July 2, 2014 vote of dissent on Pollay’s salary increase included by way of commentary a hope that in the future the evaluation process could be more robust.

City Council Oversight

Ultimately it is the Ann Arbor city council – as the governing body of the municipality where the DDA is established – that has responsibility for oversight of the Ann Arbor DDA board. It is the city council that confirms the appointment of DDA board members. And it is the city council that can potentially remove members from the board for cause.

How well has the Ann Arbor city council exercised its oversight role over the years? On Aug. 26, 2013 a joint meeting of city council and DDA board members was held. At that meeting, Sally Petersen – a first-term Ward 2 city councilmember, now a mayoral candidate – characterized her understanding of the city council’s historical performance in its oversight role. In the following quote, she was commenting on the city council’s oversight of one specific aspect of the DDA’s function – tax increment finance capture [emphasis added]:

And if we talk about goals, my goal – and I think it’s incumbent upon the city council, I don’t think that the DDA has done anything wrong per se, it’s just that the city council historically has not held the DDA accountable in terms of understanding what that is.

Does the Ann Arbor city council have an oversight role in approving the compensation of a downtown development authority executive director? That role appears to be clearly and specifically stated in the state statute enabling the establishment of the DDA [emphasis added]: “The board may employ and fix the compensation of a director, subject to the approval of the governing body of the municipality.”

However, based on the city of Ann Arbor’s response to a request made under Michigan’s FOIA, Ann Arbor’s city council did not explicitly approve Pollay’s initial hire or her compensation level in 1996. Nor has the council approved the new compensation levels in the last two years.

In more detail, on Oct. 18, 2013, The Chronicle made a request to the city of Ann Arbor under Michigan’s Freedom of Information Act for all records documenting Ann Arbor city council approval of the employment of Susan Pollay as director of the Ann Arbor Downtown Development Authority. On Nov. 7, 2013 the city of Ann Arbor responded with copies of all of the Ann Arbor city council’s annual budget resolutions dating from 1997 to the present, which include the DDA budget (as a component unit of the city), but not in line-item detail.

But no record of a council resolution specifically and explicitly approving Pollay’s hire or compensation was produced by the city of Ann Arbor in response to that request.

By way of contrast, when the Grand Rapids DDA hired a DDA executive director recently, the Grand Rapids city commission (analog to Ann Arbor’s city council) passed the following resolution on June 19, 2012:

*81555 Com. Gutowski, supported by Com. Bliss, moved adoption of the following resolution under the Consent Agenda:
RESOLVED:
1. As required by the Downtown Development Authority Act, Act 197 of the Public Acts of Michigan of 1975, MCL 125.1561, et seq., and the Rules of Procedure of the City of Grand Rapids Downtown Development Authority (the “DDA”), the selection of Kristopher M. Larson as Executive Director of the DDA is hereby approved.

The Ann Arbor city council might be able to render somewhat moot the OMA questions raised in the analysis above, by taking an affirmative action. That action would be to consider and pass a resolution that approves the pay increases given to Pollay in the last two years, as well as this year. An additional action available to the council would be to pass a resolution requesting that the DDA board produce minutes for the meetings during which executive director salary adjustments were made for FY 2013 and FY 2014.

But given the backdrop of a Democratic primary race for mayor that includes four councilmembers, the politics of those actions could be delicate. In addition to Petersen, Sabra Briere (Ward 1), Christopher Taylor (Ward 3) and Stephen Kunselman (Ward 3) are also running.

Kunselman has made efforts over the last few years to lead the council to exercise more oversight of the DDA. But those efforts have been fraught with the perception that they are purely political in nature – even when the issues Kunselman has identified have merit independent of their political dimension. DDA board members have on occasion openly criticized Kunselman for his actions, or resorted to anonymous Internet commenting in defense of the DDA’s position.

Sandi Smith, for example, has admitted to The Chronicle that in response to a published Chronicle opinion piece, she left a comment on that op-ed under the screen name “Eco Bruce.” The comment in part attempted to dismiss criticism about the DDA’s apparent failure to adhere to the city’s ordinance on TIF capture – by implicating that this criticism is rooted in “Director K’s [Kunselman's]” desire to be CEO [mayor]. Smith was DDA board vice chair at the time.

With respect to the situation about Pollay’s salary, the politics are especially a challenge – because it would mean approving a nearly 21% increase for Pollay, when computed over the last three years. That’s a period during which other city non-union employees received slightly more than a 6% increase – a $1,000 lump sum in FY 2013, 3% in FY 2014, and 3% for the current fiscal year.

Adding to the political challenge is the fact that it’s Leah Gunn who appears to have led the DDA board effort to increase Pollay’s salary in the two previous years – in a way that escaped public attention. Gunn, a former elected official and long-time Democratic activist, is treasurer for Christopher Taylor’s mayoral campaign.

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Extract from Ann Arbor Downtown Development Authority records of attendance at committee meetings. Scanned by The Chronicle.

A piece of legislation that would “modernize” Michigan’s Freedom of Information Act moved out of the House Oversight Committee.

Progress on that legislation will be interesting to track as the bill possibly makes its way into state law. [.pdf of HB 4001]

For now, I’d like to focus on just one clause of the proposed legislation. And I’d like to connect that to some otherwise unrelated dots, one of which is an upcoming Ann Arbor city council vote.

That vote – on an appointment to the board of the Ann Arbor Downtown Development Authority – will take place either at the council’s next meeting on Nov. 18 or possibly at its following meeting on Dec. 2.

I’ll work backwards from the upcoming council decision.

Every year the post-election council votes, soon after being seated, to confirm membership of its own internal committees – and to make council appointments to other boards and commissions. That includes an appointment to the DDA board. Under city ordinance and state statute, the city administrator or the mayor can serve on the Ann Arbor DDA board. [1] For the period of John Hieftje’s long tenure as mayor, it’s been Hieftje, not the city administrator, who has filled that slot on the DDA board.

Some councilmembers might be looking for a objective, performance-based (i.e., non-political) reason to appoint city administrator Steve Powers to the DDA board, instead of Hieftje. Poor attendance by Hieftje at committee meetings over the last two years would be a possible candidate for that reason.

That’s because, according to the DDA’s bylaws, continuing membership on the DDA board is contingent on active board service. According to the bylaws, an objective measure of active service on the board includes 70% attendance at one of the board’s two standing committee meetings. [2] [.pdf of DDA bylaws as revised 2010]

And attendance records of those committee meetings for the past two fiscal years (from July 2011 to the present) do not reflect at least 70% attendance by Hieftje. In fact they don’t appear to indicate attendance by Hieftje at any of the committee meetings for that period. [3]

The connection to Michigan’s FOIA is the attendance records. The DDA produced those attendance records to The Chronicle in response to a request made under Michigan’s existing FOIA. Evaluating those attendance records was somewhat challenging, because they were kept as handwritten notes in less-than-model penmanship. [4]

The DDA responded to our request under the FOIA by making paper copies of the paper originals. That meets the minimum requirement of the state statute to produce copies of records. However, it does not meet the reasonable expectation for operation of a modern office – one that is equipped with a multi-purpose business machine that will scan to a .pdf file just as easily as it will make a paper copy.

The advantages of digital copies in the form of a .pdf file – compared to paper copies – are, I think, self-evident. So in responding to requests made under the FOIA, the DDA should be using the scanning functionality of its office machine and providing digital copies to requestors. The Chronicle should not need to use its time and resources to scan those documents as an extra, unnecessary step in the process. [.pdf of DDA committee attendance records, scanned by The Chronicle]

But Michigan’s current FOIA does not provide an explicit way to force a public body to use digital technology to copy records when responding to requests made under the FOIA.

And that’s the connection to the final dot. The “modernized” version of Michigan’s FOIA that moved out of committee last week includes this clause: “The requestor may stipulate that the requested records be provided on digital media, electronically mailed, or otherwise electronically provided to him or her in lieu of paper copies.”

According to a Sarah Schillio, legislative director for Rep. Jeff Irwin (D-53) of Ann Arbor, it was Irwin’s work with other representatives that resulted in the added language allowing requestors to stipulate digital copies.

To Jeff and the other legislators who helped insert that language: Thank you – I hope that clause stays in a version that is enacted into law.

Notes

[1] Questions have been raised about this issue, but based on a 8-page analysis by the Ann Arbor city attorney’s office, either the mayor or the city administrator can serve on the Ann Arbor DDA board.

[2] We can leave aside the question of whether this makes sense to include in the organization’s bylaws. But it’s worth noting that the DDA board itself does not have the power to remove one of its own members. By state statute, removal of a DDA board member (for cause) is a power reserved for the city council – after the member to be removed has been given an opportunity to be heard. It’s a decision that can be appealed to the circuit court.

[3] Of the DDA current board membership, an initial assessment of the attendance records by The Chronicle seems to indicate that only Hieftje and probably Russ Collins fall short of the 70% attendance threshold. The handwriting in the attendance records was in some cases challenging to decipher with some names running off the edge of the photocopied page.

[4] The most recent committee notes, however – included in the board’s information packet for its Nov. 6 meeting and recorded after The Chronicle’s request for attendance records – were typed out. So in the future, it should be easier to track compliance of DDA board members with the attendance requirement in the bylaws. [.pdf of October 2013 committee meeting minutes]

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Assertion of the attorney-client privilege can, on occasion, inappropriately shield public records from view. This column shines a light on the subject by considering such a case.

Sunshine Week is an occasion to remind ourselves that open government is good government.

Michigan has two laws that are key to open government: the Open Meetings Act (OMA) and the Freedom of Information Act (FOIA). Both of these laws rely crucially on good faith. For example, the FOIA allows a public body to deny access to certain public records – like those that are protected by the attorney-client privilege.

If a record is requested and then denied based on the attorney-client privilege, a requester has no way of judging whether the assertion of privilege is appropriate. A requester relies on the good faith of government officials that privilege is not inappropriately extended to records that are not in fact protected by privilege. A requester can resort to a lawsuit, which under Michigan case law can result in the review of the records by a judge to confirm – or refute – the public body’s assertion of privilege. But few requesters have the wherewithal to file a lawsuit over a FOIA denial.

Here at The Ann Arbor Chronicle, we’re celebrating Sunshine Week by laying out a recent occasion when we requested records under the FOIA, were denied the records, appealed to the city administrator, were denied under the appeal, but then were able to obtain some of the records by other means. The record in question is an email written by Ann Arbor city attorney Stephen Postema. This provides an opportunity to evaluate independently, without filing a lawsuit, whether the city inappropriately asserted attorney-client privilege in denying access to a record.

We consulted on the matter with an attorney, Marcia Proctor, who agreed to analyze the relevant factors in a hypothetical scenario. Proctor is former general counsel of the Michigan Bar Association, a specialist in legal ethics, whose practice specializes in professional responsibility for lawyers and judges.

We first present the hypothetical scenario, followed by a brief discussion of the relevant factors in the scenario identified by Proctor. We then present the text of the email and apply the various tests outlined by Proctor. We reach the conclusion that the city inappropriately asserted attorney-privilege to the document.

We then evaluate whether a different exemption provided by the FOIA might apply. That exemption allows a public body to withhold communications internal to the body – to the extent that they are non-factual and preliminary to a final decision by the body. In the balancing test prescribed by the state statute, we reach a different conclusion than the city did: We think the public interest in disclosure outweighed any interest the city had in shielding this frank internal communication from public view.

Finally, we urge the city council to weigh in on the city’s administrative policy on FOIA response, which is currently being revised. It’s important for councilmembers to set the overarching principle that guides the city’s FOIA responses. And we think that guidance should be biased in favor of disclosure.

The Hypothetical

Here’s the hypothetical scenario we outlined for Proctor:

The results of a city’s annual financial audit are presented to the city’s audit committee at a regularly scheduled public meeting. Among the items in the report, and highlighted by the auditor orally, are instances of an employee who claimed mileage reimbursements while at the same time receiving a vehicle allowance. The auditor characterizes the instances as a “double dip” and violation of city policy. The records produced under a FOIA request identify the employee as the city attorney. The city attorney reports directly to the city council, and serves at the council’s pleasure.

Sometime after the meeting, the city attorney writes an email to all city councilmembers, the chief financial officer and the city administrator, addressing his reimbursements identified in the audit report.

Subsequently a second meeting of the audit committee is convened, in part to discuss the mileage reimbursements. The records produced under a second FOIA request exclude the city attorney’s email, and an appeal to the city administrator challenging the denial is unsuccessful.

Factors to Consider

Proctor identified four key factors to consider, in evaluating whether the email described in the hypothetical scenario might have attorney-client privilege properly attached. Summarizing Proctor, in Michigan the attorney-client privilege attaches to information satisfying the following factors:

1. The information is a communication;
2. The communication is made in confidence by a client to his or her attorney (or by the attorney to his client);
3. In the communication, the attorney is acting as legal advisor;
4. The communication must be for the purpose of obtaining legal advice on some right or obligation.

In the hypothetical, Proctor noted that the record in question is an email communication, thus satisfying Factor 1.

With respect to Factor 2, Proctor identified as relevant whether all the parties copied on the email – representatives of finance and administration – are ongoing clients in the scope of the city attorney’s duties. Although it wouldn’t be unusual for finance and administrative staff to be included in the scope of the city attorney’s  duties, Proctor notes that if the city attorney’s duties don’t cover giving advice to those staff, then communications that include a third party are generally not privileged. She also identified as relevant whether there was a label or some other indication that the communication was made in confidence. Based just on the limited facts in the hypothetical scenario, Proctor couldn’t conclude whether Factor 2 would be satisfied.

For Factor 3, Proctor highlighted that attorney-client privilege applies just when the lawyer is acting as legal advisor to the client in the matter. In the hypothetical scenario, she observed, it’s the city attorney’s own conduct that appears to be the core subject matter of the communication – given that the auditor’s report has called into question whether the city attorney’s mileage reimbursements were proper. Proctor noted that under lawyer ethics rules, a conflict of interest between a client’s interest and the lawyer’s own interests can prevent a lawyer from advising the client. But if the lawyer is not advising the client as the client’s lawyer, then the communication cannot be privileged.

Also related to Factor 3, Proctor notes that a lawyer might be asked to perform a variety of functions beyond providing legal advice – including providing input on business, financial or political issues. The email described in the hypothetical scenario, Proctor observed, appears to relate to the business duties of the audit committee. It’s only when the lawyer is acting as a lawyer for the client that a communication can be privileged, Proctor stressed.

Under Factor 4, Proctor indicated that if the purpose of the email is merely to explain the city attorney’s own past acts, not to advise the city council on some right or obligation, then the attorney-client privilege would not apply. The attorney-client privilege only protects the legal advice requested or provided, Proctor notes, and does not protect underlying facts relating to the subject matter.

Here we note that Proctor’s identification of the relevant factors in the hypothetical scenario should not be construed as Proctor making any claims about anyone’s professional conduct.

City Attorney’s Email

The hypothetical scenario is consistent with an actual recent scenario. How do the four relevant factors apply to the actual text and context of the email? We think that application of the four factors leads to the clear conclusion that the email in question was improperly withheld under Michigan’s FOIA under the exemption covering the attorney-client privilege.

City Attorney’s Email: Full Text

We’ve numbered the paragraphs for ease of reference.

1. From: Postema, Stephen
Sent: Fri 1/18/2013 5:03 PM
To: Postema, Stephen; *City Council Members (All)
Cc: Powers, Steve; Crawford, Tom
Subject: RE: Privileged and Confidential: FW: File: A05-01217 Litigation Updates Mayor and Council:

2. This is to inform you that I am back in the office after a restful vacation in Costa Rica with two of my children. However, I came back with a bad case of bronchitis. My body is clearly not used to all that rest.

3. It is always interesting to find what issues have arisen when one leaves. When I came in on Wednesday, I met briefly with Tom Crawford to discuss e a copy of the audit report. I had never seen the audit report, much less the paragraph on “reimbursement” issues, although Tom had discussed just in general terms the issue with me on December 31st when he asked about my contractual provisions and I gave him the appropriate paragraphs.

4. I will provide you additional information in a longer memo, but the audit report is obviously incorrect:

5. First, there is no violation of City policy as stated. Tom and I called the auditor on Wednesday to inquire what City policy he was referring to. (Steve Powers agreed that we should call the auditor.) The auditor didn’t know off the top of his head and reviewed the file. I spoke with him today and he admitted that there was no violation of City policy in the files he reviewed and the statement was incorrect. However, he is going to talk to his associates further, and let us know if he has missed anything. Any one-second review of the City’s mileage policy demonstrates that the auditor’s statement is incorrect.

6. Second, in any case, the terms of my agreement with the Council is my contract which was specifically negotiated. It calls for a car allowance (not a mileage allowance) and separately for travel reimbursement. This is no surprise to anyone. I have followed mileage reimbursement procedure for almost a decade. (Although I rarely file them even when entitled to.)

7. Amazingly, as to my contract, the auditor confirmed for me that he had not been informed of my contract, nor had he reviewed it, but that it would certainly be relevant. I told him I appreciated his candor.

8. Third, the fact that an auditor has put an incorrect statement in an audit report without even checking whether a City policy is in fact violated or whether another document (such as a contract) may govern the situation raises a host of concerns in my mind, but that is for Steve Powers and Tom Crawford to deal with in the bigger audit picture.

9. As to the specific issue of the incorrect statements in the audit report, Tom and I will be dealing with the auditor on this correction.

10. Fourth, the third sentence of the paragraph is also incorrect: “the City became aware of this situation during the year..” The City and the finance department has always been aware of my contract, as is the whole City, as the contract is FOIAed all the time and is posted on the internet.

11. Fifth, there seems to be a question about my decision to give up the car allowance. I thought about this issue in September as I completed my year end report. I then made this proposal in early October to Councilmember Higgins as I always have done. I did this because the raise I was due this past fall, would have put me in a situation where I had a similar salary to the City Administrator – but still a car allowance. If the City Administrator did not have a car allowance, I thought it best for me to forgo mine – just as a leadership issue. (Steve Powers wouldn’t have cared about the issue, as he is not like that, but I just thought this was the right thing to do.)

12. There was no discussion with the admin. Committee on my part about this first. I just thought it was a reasonable proposal that made good policy sense. It was not because of any issue or problem with a car allowance. Related to this, I have to manage a whole department, and I have other things to spend this car allowance money on in the upcoming budget as I am down two FTEs from when I started this job, and things are always tight.

13. Finally, I will provide additional information to the Council as we resolve this issue. In the meantime, I request that this information not be made public while this is ongoing. It is always a sensitive issue when an auditor has made a factually incorrect statement in an audit, particularly one stating that a violation of City policy has occurred. Tom Crawford will be providing a formal written response the audit, which will include this issue. Obviously, the audit committee will also be involved at the next audit committee meeting.

14. I’m sorry for delay from Wednesday when I reviewed this issue, but I wanted to get an understanding of what was going on here from the auditor’s side before I wrote you.

15. I have been informed that the reporting on this issue has not bothered to link the actual reimbursement policy at issue nor mention the actual terms of my contract. When appropriate I will address this issue also.

16. As always, please contact me with any questions or concerns.

17. Stephen K. Postema
Ann Arbor City Attorney

City Attorney’s Email: Ann Arbor Chronicle’s Factor 1 Analysis

Factor 1 requires that the privileged information be a communication, and there’s no question that the email is a communication. So it’s uncontroversial that this factor is satisfied.

City Attorney’s Email: Ann Arbor Chronicle’s Factor 2 Analysis

Factor 2 requires that the communication be made in confidence and not include third parties who aren’t clients.

The email includes at least two indications that it was sent in confidence. First, the subject line includes “RE: Privileged and Confidential.” The subject line also includes reference to “Litigation Updates.” Because the email itself doesn’t include litigation updates, it’s possible that the subject line label was inadvertently recycled from a different email and that the label was not intentionally applied. But even if the label was recycled, we think it’s almost certain that the label reflects an intention that the email was sent in confidence.

Second, the body of the email, in paragraph (13), includes a statement from Postema that “I request that this information not be made public while this is ongoing.” Here it’s not clear what the antecedent is of “this information.” The phrasing as a “request” – that the recipients of the communication could choose to honor or not – seems to allow for the possibility that this is not meant as an attorney-client privileged communication. That’s supported by the qualification “while this is ongoing,” which implicates that it would be appropriate at some future time to disclose the information – which doesn’t seem consistent with attorney-client privilege.

But all this hinges on the intended antecedent of “this information.” And “this information” might plausibly be the fact that, according to the city attorney, the city’s independent auditor has characterized the audit report as containing an inaccuracy. That is, the referent of the phrase “this information” is plausibly not the city attorney’s email itself, but rather some of the facts contained in it. Based on the email itself, and the subsequent assertion of attorney-client privilege, we think it’s fair to conclude that it was Postema’s understanding that the email was sent in confidence.

And based on The Chronicle’s experience, it’s the general understanding among most city officials that employees of the city – in particular, top level staff like the city administrator or the chief financial officer – are considered ongoing clients of the city attorney’s office. So the fact that Steve Powers and Tom Crawford are included doesn’t exclude the communication from attorney-client privilege.

We think it’s fair to conclude that Factor 2 is satisfied.

City Attorney’s Email: Ann Arbor Chronicle’s Factor 3 Analysis

Factor 3 requires that the lawyer be acting in his capacity as the client’s legal advisor. However, the majority of the email appears to be confined to Postema’s reports on the content of conversations with others – including the auditor, who is not Postema’s legal client – and Postema’s explanations of his past actions. It’s difficult to see how attorney-client privilege could be extended to Postema’s report of a conversation he had with a non-client. Further, the explanation for Postema’s desire to eliminate his car allowance from his contract – which involves Postema’s theory of how his car allowance might be perceived when contrasted with the city administrator’s lack of a car allowance –  doesn’t appear to involve a legal analysis or legal advice, but rather Postema’s theory of good leadership. So by sending this communication, Postema does not appear in any way to be acting as the council’s legal advisor.

The only paragraphs that might conceivably be construed as containing legal analysis or advice are paragraphs (6), (7) and (8). In those paragraphs, Postema might be considered to be offering an implicit legal opinion that his employment contract governs whether there was a policy violation, and an implicit opinion that his contract allows for both a vehicle allowance and mileage reimbursements.

But to the extent that Postema is acting as the city council’s legal advisor by writing the email, then he would have an apparent conflict in rendering this legal advice – because his own interest in establishing that he did nothing wrong obviously conflicts with the city’s interest in having a clear understanding of the facts, so that appropriate policy changes can be undertaken if necessary.

The most generous approach, we think, is to assume that Postema was adhering to his ethical obligation not to provide legal advice to a client on a matter in which he had a conflicting personal interest, in which he could reasonably anticipate could conflict with the city’s interest. But that forces the conclusion that he was not acting in his capacity as anyone’s lawyer by writing the email; thus, he was not making a communication to which attorney-client privilege properly applies.

It’s fair to conclude that Factor 3 is not satisfied.

City Attorney’s Email: Ann Arbor Chronicle’s Factor 4 Analysis

Factor 4 requires that the purpose of the communication be to provide legal advice on some right or obligation. The evaluation of Factor 4 is similar to that of Factor 3. In evaluating Factor 3, we noted that the email does not appear to contain much – if anything – in the way of legal analysis or advice. It’s confined to Postema’s explanation of his past actions and his reports of conversations with others.

Because the underlying facts related to the subject matter aren’t protected by privilege, it’s difficult to see how any of Postema’s reporting of facts concerning the audit are protected by attorney-client privilege.

It’s fair to conclude that Factor 4 is not satisfied.

Frank Communication

In addition to citing the Michigan FOIA’s attorney-client privilege exemption in denying Postema’s email to The Chronicle, the city of Ann Arbor asserted another exemption allowed under the FOIA. That exemption allows a public body to withhold records that are communications internal to a public body – but only to the extent that they are non-factual and preliminary to a final determination of the body, and only to the extent that the public interest in disclosure is outweighed by the public body’s interest in frank communication.

First, it’s not clear how the “frank communication” exemption could apply to the entire text of the email. The exemption applies only to non-factual communication – and much of the content of the email recites factual information pertinent to the audit committee’s work. When a record contains information that does qualify for an exemption as well as information that does not qualify for an exemption, then the Michigan FOIA requires that the exempt information must be separated from the non-exempt information (i.e., it must be redacted), and the non-exempted information must be disclosed.

The only portions of Postema’s email that appear potentially to be eligible for redaction under Michigan’s FOIA are those portions where Postema appears to draw negative conclusions about the professional performance of the independent auditor. For example in paragraph (8), Postema writes:

… the fact that an auditor has put an incorrect statement in an audit report without even checking whether a City policy is in fact violated or whether another document (such as a contract) may govern the situation raises a host of concerns in my mind, …

If we confine ourselves to just those portions of the email where Postema is expressing his exasperation to the council about the auditor’s performance, the Michigan FOIA requires a balancing test to be applied: Does the city’s interest in frank communication among its agents outweigh the public’s interest in disclosure?

In weighing that balance, the city appears to have concluded that the city’s interest in shielding from public disclosure Postema’s attitudes toward the auditor’s performance outweighed the public’s inherent interest in disclosure. Obviously, we weighed the balance differently. We think the public interest is best served by revealing the character of the city attorney’s relationship to the city council as documented in his email.

And in his email, Postema appears to have selectively omitted factual aspects of his conversation with the auditor that tend to mitigate Postema’s apparent position. His position seems to be this: Even though there was no factual basis for doing so, the auditor still inserted the note about mileage reimbursements in his report.

What Postema omitted in his email to the council was a significant consideration, and one we think he certainly should have included – if his purpose was to apprise the council of relevant facts related to his investigation of how the audit was conducted.

In his email, Postema faithfully reported to the council the fact that the auditor had, in conversation with Postema, acknowledged the factual incorrectness of the phrasing in the report – the phrasing indicating that there’d been a violation of city policy. What Postema did not convey to the council was the fact that his conversation with the auditor, described in his email, included a statement by the auditor characterizing the situation as “illogical.” From the auditor’s email to Postema, recounting the same conversation [emphasis added]:

As I also stated in our conversations, from a business practices standpoint, our conclusion (with or without the existence of a policy) was it would be illogical and, therefore inappropriate, to make mileage reimbursements to persons having a car allowance. This conclusion is in the absence of knowledge of an agreement that would reasonably identify that payment of both mileage reimbursement and car allowance is acceptable and appropriate.

We think it’s to the city’s credit that this email from the auditor was included in the city’s official formal response to the auditor’s note.

But in his own communication to the council, Postema chose not to include this perspective on the auditor’s original conclusion – that the conclusion had been based on the idea that the mileage reimbursements were illogical, if not a violation of a written policy. At the January council audit committee meeting that followed Postema’s email, the auditor emphasized that there had not been a violation of a policy per se, because there was no written statement among the city’s policies that if an employee had a vehicle allowance, then the employee was not eligible for reimbursement for mileage.

For the auditor, it may have been self-evident that vehicle allowances are not compatible with mileage reimbursements – so self-evident that a written policy wouldn’t be needed. Whether Postema’s “travel” clause in his contract would cover ordinary mileage – for example, to drive to Lansing to represent the city in court – was not a question the city council audit committee wanted to entertain at its January meeting.

It’s worth noting that even in the revised version of the report, the auditor notes the problematic character of the reimbursements, observing that  ”… in each instance the expense report was not subject to independent review and approval.” And the city’s own recommended policy revision includes a new procedure that would require the chair of the council administration committee to sign off on the mileage reimbursements for its two direct reports – the city attorney and the city administrator.

In addition to the omission of a relevant fact, Postema made an assertion in his email to the council that is factually wrong. In addition to the “violation of city policy” phrase, in paragraph (10), Postema disputes the accuracy of part of the auditor’s note:

Fourth, the third sentence of the paragraph is also incorrect: “the City became aware of this situation during the year..” The City and the finance department has always been aware of my contract, as is the whole City, as the contract is FOIAed all the time and is posted on the internet.

First, Postema’s reasoning here is muddled. Whether the finance staff had always been aware of his contract is not material to whether the city became aware of the issue of possibly inappropriate mileage reimbursements during the year.

Postema’s assertion is also refuted by the facts. In responding to a different request made under the FOIA, the city provided The Chronicle with a written statement from the auditor to a member of the city council’s audit committee. And that statement indicates that the issue of the city attorney’s mileage reimbursements had been brought to the auditor’s attention through a fraud risk questionnaire response, dated June 29, 2012, filled out by a member of the financial services staff.

It’s also significant that according to the auditor’s statement, the questionnaire response indicated that the issue had been raised previously, and that the city’s internal staff auditor had communicated the issue to the city’s CFO. This gives additional context to the auditor’s recommendation this year that the city consider having the internal staff auditor report directly to the city council audit committee, instead of to the CFO.

In any case, it’s evident that the auditor’s original report – stating that the city became aware of the situation during the year – was accurate, contrary to Postema’s assertion.

Conclusion: More Sunshine, Please

It’s in the public interest, we believe, for the public to understand the nature of the relationship between the current city council and the person who currently serves as the city attorney.

So we weighed the balance differently than the city did with respect to the “frank communication” FOIA exemption. We think it’s clear from Postema’s email that the city council – at least in this instance – did not receive a complete, accurate and unvarnished report from its city attorney about city business. And we think it’s important that the public be aware of that.

It’s not an appropriate use of Michigan’s FOIA exemptions to shield officials from embarrassment or to allow for needless denials of information. It’s our view that the city of Ann Arbor is routinely over-broad in its assertion of exemptions under the FOIA. And it’s our view that the city’s FOIA response procedures rely too heavily on input and control by the city attorney’s office. But we think it’s to the credit of the city of Ann Arbor that the administration is currently engaged in a revision to the administrative policy on FOIA response.

Given that it’s Sunshine Week, we call on the city council to weigh in on that administrative policy. We think the city council should weigh in on the basic overarching principle guiding the FOIA policy.

Currently, the guiding principle of the policy can be fairly paraphrased as follows:

(A) The city of Ann Arbor will produce no requested records, except those that the city is required by the FOIA to produce.

A better policy would be one that is biased in favor of disclosure. That guiding principle would be the following:

(B) The city of Ann Arbor will produce all requested records, except those records that the city is expressly prohibited from producing by some federal, state or local law.

We think (B) is a better starting point for an administrative policy. Even if the city council were to opt for (A), then the council should make that decision explicitly and openly as the governing body of the city – through a formal resolution put forth at an open meeting.

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The old policy was brief (one-page) and essentially outlined how much would be charged for copies, for labor to retrieve records, and how much would be charged as a deposit. The new policy is more detailed, and specifies how requests are to be logged and documented by the FOIA coordinator, a form that requesters can use to request records, and an internal form that is to be used by staff to calculate costs associated with fulfilling a request. AATA’s FOIA coordinator is deputy director of the AATA, Dawn Gabay.

The city of Ann Arbor’s administrative policy is somewhat more detailed that the AATA’s revised policy. [.pdf of city of Ann Arbor policy]

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

This is the third special meeting for the regents so far in 2012. Most recently, the board met on Feb. 21 – with all members participating via conference call – and voted 6-2 formally to oppose Senate Bill 971. The legislation, which was subsequently enacted, made explicit that graduate student research assistants (GSRAs) are not entitled to collective bargaining rights under Michigan’s Act 336 of 1947. The board’s two Republican regents – Andrea Fischer Newman and Andrew Richner – dissented.

That meeting included a vigorous debate about whether the meeting itself was legal. It was convened by invoking a rarely used regental bylaw that allows either the president or three regents to call a special meeting for emergency action. However, the meeting was apparently not publicly noticed 18 hours in advance, as required by the Michigan Open Meetings Act.

Nor did the regents appear to make an explicit decision on Feb. 21 in which 2/3 of them concurred that the legislation constituted an imminent threat to the health, safety, or welfare of the public. That’s another way the meeting could have conformed with the OMA. In response to a Freedom of Information Act request from The Chronicle, for records demonstrating conformance with the OMA for the Feb. 21 meeting, the UM did not produce any records that provided evidence that the 18-hour noticing requirement was met, or that 2/3 of the regents believed that Senate Bill 971 constituted an imminent threat to public safety, health and welfare.

The other special meeting called this year was held on Feb. 8. The topic of the meeting was identified in advance: To approve the use of Michigan Stadium for the National Hockey League’s Winter Classic, which is scheduled for Jan. 1, 2013. Regents were unanimous in their vote of approval on that item.

This does not depict Ann Arbor dressed in Christmas colors. Numbered locations are fire stations. This map pertains to Station #1. The green area is the area of the city reachable from Station #1 in four minutes. The red area corresponds to 10 minutes. (Image links to higher resolution file)

The report was a long time arriving, though. It was almost a year ago – on Feb. 7, 2011 – when the Ann Arbor city council authorized the expenditure of up to $54,000 for a contract with the International City/County Management Association to conduct the study.

It was a study that then-city administrator Roger Fraser had wanted, and it came in the context of a city council budget retreat a month earlier. At that retreat, councilmembers were briefed on various alternatives to the city’s current approach to staffing its fire protection – including an approach that uses a combination of paid on-call and full-time fire service professionals. At the same council meeting when the ICMA report was authorized, Stephen Rapundalo, who at the time was chair of the city council’s labor committee, criticized the city’s firefighters union for its reluctance to accept a benefits package similar to the one for non-union city workers.

So, how important was the ICMA fire protection study to the city?

Here’s one way of answering that. When Fraser announced his resignation, the city council’s search committee identified in April of this year a handful of top priority items for the interim administrator. The interim – Tom Crawford, the city’s CFO – was supposed to keep the place running, and make sure a small list of priority items didn’t fall through the cracks during the transition in the city’s top position. The ICMA fire protection study made the list.

The report was originally due in the spring, and then was delayed, and delayed again. The city was paying the ICMA for its work – a total of $38,000 in June 2011. I spoke with Crawford about the report this fall – he couldn’t offer much in the way of explanation, but indicated that the delay was on the ICMA’s end.

New city administrator Steve Powers started the job in mid-September. No ICMA report had materialized. Then in mid-November, the city paid an additional $400 to the ICMA. Shortly after that, word filtered through firefighter rank-and-file that a draft report had been released to the city by the ICMA.

At the time, The Chronicle had a Freedom of Information Act (FOIA) request pending with the city for a different set of records – maps depicting fire response-time boundary areas. Why? I’d seen one such map hanging in a public area on the second floor of city hall, that had – ahem – sparked a burning desire to see copies of all such maps.

When that request came back partly denied (no maps were produced), The Chronicle submitted a “clarification” of the original request, and added a request for the draft ICMA report. Other media had reported that their request for the draft report had been denied – but the city’s given reason for the denial was, to us, simply wrong. We figured that citing a specific prior court case might give us a shot.

We didn’t receive a denial. Instead, the city asserted its right to a 10-day time extension. And apparently this extension came on the very same day that the city turned down an appeal made by a different requester regarding the city’s denial of a similar request. It’s not entirely clear why the city denied an appeal made on one request, while on the same day claiming an extension for a similar request – from a different requester.

During the extension, I approached Powers, essentially outside the formal mechanism of the FOIA process. My pitch to Powers was not a legal argument. My pitch was based on the organizational interests of the city and the public interest of the community. We met on Friday, Dec. 16.

In that meeting, Powers assured me the draft report, the final report (which is still watermarked “draft”) and the maps would be released the following week. And the records were, in fact, released. We withdrew our FOIA request when we got the information we requested.

So Christmas did come early, right? But seriously, WTF? By the way, that does translate politely – as “Where’s the fire?”

We got what we wanted, and we should be happy about that.

Yet I still feel like the city wrapped up new socks and underwear in colored paper and called it a Christmas present. I want socks and underwear every time I yell FOIA in this democratic theater that we call Ann Arbor, not just at Christmas time.

To be clear, this column doesn’t attempt an analysis of the ICMA report or a comparison of the two draft versions of the report. We begin by looking at a super-boring meeting – of the city council’s audit committee.

City Council Committees: Where Democracy Dies?

So, why do we need to talk about the city council? City councilmembers aren’t “first responders” to a FOIA scene, right? That’s right, they’re not.

Ann Arbor’s procedure is that FOIA requests first go to the FOIA coordinator. The requests then get distributed to a relevant staff person, and the assembled records get checked over by the city attorney’s office, before they’re given to the requester. Or if a request is denied, and the requester appeals the denial, the appeal could wind up on the city administrator’s desk.

So two potential key actors in Ann Arbor’s current FOIA system are the city attorney and the city administrator. And it’s those two positions that the city council hires and fires in Ann Arbor’s council-manager form of government. So any pattern of behavior we’d like to see in the city attorney or the city administrator needs to be supported by a majority of the city council.

One problem with our current city council is that a majority of them don’t appear to believe in basic, actual democracy. You know, the ordinary garden-variety kind where you have, say, a bunch of people sitting around a table, and they need to reach a consensus about who will be the chair of a committee. And somebody says, Hey let’s just vote on it! Let’s elect someone! Let’s get Margie, she’s been here the longest! Let’s elect Margie!

I didn’t make up that scenario out of thin air. It was essentially what unfolded when the audit committee of the city council met on Monday, Dec. 19. Carsten Hohnke (Ward 5) was absent. Attending were Stephen Kunselman (Ward 3), Sandi Smith (Ward 1), Sabra Briere (Ward 1) and Margie Teall (Ward 4). As Teall began to preside over the committee’s work, Briere asked Teall to pause.

Briere wanted to engage in a deliberate act to elect a chair of the committee. Her desire for some sort of elective process was based on the fact that the previous year, the audit committee didn’t meet. The committee didn’t meet because the chair, Stephen Rapundalo, hadn’t called a meeting. But how was it determined who the chair was, if no meeting had been held to determine a chair? This was actually a question that Kunselman had previously raised at city council meetings.

In Briere’s remarks, it was plain (to me, in any case) that she had no problem with Teall chairing the committee – Briere simply wanted to engage in the act of electing Teall as chair. Smith poo-pooed the idea that there was even an open question, saying that Teall had more seniority than any one of them – by three elections. Teall herself appeared to bristle at the suggestion that they should vote on who would be chair, saying that she was concerned about the precedent it would set.

As near as I can tell, that precedent would be democracy.

Karen Lancaster, who is accounting services manager for the city, was taking minutes for the committee. She appeared a bit flummoxed by the discussion, and inquired if the committee members would be voting. Briere then smoothed things over by saying she would be content if it was simply explicitly documented that Teall would be chair, based on her seniority on the council. (No worries, the city’s audit turned out to be basically in good shape, except for some persistent P-Card issues – more on that in a meeting report sometime in the future.)

Later on the evening of Dec. 19, at the city council meeting, Teall reported out from a closed session held towards the end of the council meeting. The council’s administration committee had produced a resolution on the city attorney’s contract renewal. Most of the council had attended the closed session on city attorney Stephen Postema’s performance review. Briere declined to participate in the closed session, emerging from the council’s workroom to take her seat for a while – at the otherwise empty table in the council chambers.

When the rest of the council returned, Briere’s reason for sitting out the closed session became clearer. When the resolution was put before the council, including Briere, she said she didn’t believe the council’s administration committee – consisting of Teall, Tony Derezinski (Ward 2), mayor John Hieftje, Marcia Higgins (Ward 4) and Christopher Taylor (Ward 3) – had solicited non-committee members before the closed session for input on Postema’s performance, or provided an opportunity to do so. And no one from the administration committee could point to such an occasion in the relevant timeframe.

So, twice in one day, two different committees of the city council apparently balked at following the most basic of democratic principles. That’s just internal city council politics, I suppose. Or call it city council culture.

But even if the council can’t organize itself internally in a democratic way, I still hold out hope. I hold out hope that the council could demand that its two direct reports – the city attorney and the city administrator – act in an open and democratic way with respect to the FOIA.

Ann Arbor’s FOIA Procedures Policy

Former city administrator Roger Fraser’s FOIA procedures policy from March 2010 (Policy 104) runs 30 pages long. Printed out on paper, I suppose it would make excellent kindling, just like any Chronicle meeting report. Two key points of the policy:

6.2.3 Document Review; Exemptions
…The general policy of the City is to not release information that is exempt from disclosure under FOIA or other law. (1)

6.2.3.2 Exemptions Identified – Copy Requested The service area shall highlight or otherwise identify public records (or portions) for which it determines an exemption applies or may apply and provide the public records to the FOIA Coordinator, along with information as to which exemptions the service area believes apply. The FOIA Coordinator shall present these initial determinations to the City Attorney for review. (2)

Together, the effect of these policies is to release the absolute minimum amount of information to the public, and to give a central role to the city attorney’s office in the process.

So, for rank-and-file city staff members who are assigned to track down the requested records, their first task under the policy is to try to figure out which exemptions apply or even might apply. By way of example, some commonly cited exemptions are attorney-client privileged communications, physician-patient privileged communications, or information of a personal nature that would amount to an unwarranted intrusion into someone’s private life.

Then, once staff has identified the exemptions, the city attorney’s office reviews the records and the possible exemptions.

It’s easy to imagine the opposite approach, based on the insight that the exempt status of information under the FOIA does not require a public body to withhold it. Here’s a “draft” of what that could look like:

1. Document Review: The general policy of the city is to release any information requested under the FOIA, without regard to its possible exempt status under the FOIA, to the extent that such release would not violate some other law.
2. Disadvantages Identified: The service area shall identify any perceived disadvantage to the city as an organization or to the public that would arise from disclosing the requested records. The fact that a record is exempt under the FOIA shall not be cited as a disadvantage that accrues to the organization on disclosure. If any perceived disadvantage is identified, then the FOIA coordinator will submit the records and the specific concern about disadvantages to the city attorney. If the city attorney is able to identify a qualifying exemption under the FOIA, then the information will be withheld.

This approach would take the city attorney out of the automatic loop for review for some requests. For example, if a fire chief receives a request from someone who wants a copy of a draft report, and the fire chief can’t think of any reason to withhold it, or maybe even actually wants to push it to the public, then the report wouldn’t even get reviewed by the city attorney before being given to the requester.

Of these points, the most important is the first. The second is more like a staff management issue than a policy point. Trying to describe who reviews a request, and when, is more like an implementation question than a policy question. If the first point is in place, it shouldn’t matter who’s reviewing – the service area staff or the city attorney’s office. But like I say, that’s a draft. I don’t think it would be too hard to come up with a task force of interested citizens who would be willing to invest the time to sit down with the city administrator to hammer out a revision to Fraser’s Policy 104.

Results of the “Disclose the Minimum” Policy

So what happened when the city implemented Fraser’s Policy 104? One result was that the city denied a request for maps showing the boundaries of the geographic area reachable in different time periods by firetrucks deployed from different fire stations.

What triggered the request was a map, which I observed hanging on the wall of city hall on Nov. 20, when I attended the city council caucus. (For you councilmembers who had a perfect record of non-attendance at Sunday caucus in 2011 – that is, everyone who’s up for election in 2012, including the mayor – that’s the kind of thing you might miss.) It was hanging there with other maps as part of GIS Day at the city earlier in the week.

The map I saw shows the response time areas for fire stations #1 and #2 on the same map. (Station #2 is no longer used as a fire station, but presumably could be converted back to one.) This map piqued my curiosity because I’d heard speculation from rank-and-file firefighters that the city was exploring a “super station” concept – a deployment of trucks and firefighters to just two of the city’s six fire stations. On that kind of approach, each station would be staffed with more staff and firefighters than the individual five currently operating stations are. So I was keen to get an understanding of other possible maps that the city had created.

Maps are facts assembled for visual display. They’re just data. Yet the exemption cited by the city asserted that the maps were of “an advisory nature.” Specifically, here’s what the denial letter asserted [emphasis added]:

Your request is denied to the extent that electronic files have been exempted under the following, based on a determination that has been made that the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in Disclosure:

1. Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. MCL 15.243(1)(m)

Please be aware that the map you photographed is an internal document that falls within the foregoing exemption as well, but was inadvertently posted on the wall on the second floor of City Hall. It was removed when the inadvertent posting was noticed.

So the city attorney is denying FOIA requests based on the exemption that begins with the phase “communications and notes within a public body” apparently without attention to the requirement that to qualify for the exemption, the communications must be “other than purely factual materials.”

Here’s how I put it in a revised request, in which I stressed that it had not been my intent to be requesting anything other than purely factual materials:

… what I intended to request was purely factual information. Indeed, I believed I was in large part requesting sets of lat-long coordinates together with the metadata that would allow for their correct interpretation. The line on a map showing a boundary for 7-minute response time, for example, would ultimately consist of lat-long coordinates. The exemption in 15.243 Sec.13.(1)(n) cited by the city clearly does not apply to purely factual information like sets of lat-long coordinates. From the city’s use of the exemption in 15.243 Sec.13.(1)(n), however, I conclude that the city understood my request to be for information other than purely factual information. I hereby clarify that my request intended to identify only factual information.

That revised FOIA request included a request for the draft copy of the report for the fire protection study from the ICMA, a kind of request that by then had already been denied to other media – based on the “internal communication” exemption. An outside consultant’s report, like the draft of the ICMA’s report, is simply not a “communication within a public body.”

It’s actually surprising that there’s a Court of Appeals case from 1987 that is right on point. Who would even contemplate the possibility that the FOIA exemption on communication “within a public body” would extend to an outside consultant’s report? Apparently the state of Michigan’s Department of Management and Budget did. But the Court of Appeals made short shrift of the argument [DeMaria Building Company v. State of Michigan, Department of Management and Budget 1987], concluding that “… we interpret the provisions of §13(1)(n) as not providing for exemption from disclosure of communications of independent consultants to a public body.”

While the maps are clearly internal documents, they are not exempt – because they are simply facts, and are not advisory. And while the draft ICMA report is clearly at least in part advisory, and preliminary to a final decision, that’s not relevant – because the draft ICMA report is not a communication within a public body or between public bodies.

Merry Christmas: Fighting Fire with FOIA

So here are the Christmas presents, in case you haven’t found them elsewhere online:

• Final ICMA Report (Watermarked with “Draft”)
• Earlier Version of ICMA Report
• Fire Map Stations 1 & 6
• Fire Map Station 6 (4min & 10min)
• Fire Map Station 6 (4min & 8min)
• Fire Map Station 5 (4min & 10min)
• Fire Map Station 5 (4min & 8min)
• Fire Map Station 4 (4min & 10min)
• Fire Map Station 4 (4min & 8min)
• Fire Map Station 3 (4min & 10min)
• Fire Map Station 3 (4min & 8 min)
• Fire Map Station 2 (4min & 10min)
• Fire Map Station 2 (4min & 8min)
• Fire Map Station 1 (4min & 10min)
• Fire Map Station 1 (4min & 8min)

I haven’t reviewed either draft report in great detail. But I did look through them with an eye to testing the consistency of the ICMA’s findings (based on a comprehensive look at Ann Arbor’s fire department) with my own very tentative conclusions based on the tiny set of data (from four fires) I examined in detail. That examination was prompted by police chief Barnett Jones’ complaint made during a city council meeting that reporting in other media about AAFD response times had been inaccurate.

As part of The Chronicle’s May 16, 2011 council meeting report, I was able to show that constructing an accurate timeline for AAFD response  to a fire is not as simple as pulling numbers off an AAFD report. In AAFD reports, some time points that are actually different are systematically collapsed into one time point. Augmenting AAFD reports with computer-aided dispatch data helps to reconstruct more precisely what happened.

And subsequent analysis of the computer-aided dispatch data that The Chronicle was able to obtain shows that even the computer-aided dispatch data contains regular inconsistencies, which are nonetheless explainable. So I found that by drawing from the computer-aided dispatch data, the AAFD reports (including firefighters’ written narratives), and the physical reality of station locations, it’s possible to construct plausible timelines for alarm times, vehicle station departures and vehicle arrivals on a fire scene.

What I concluded was this: The time interval that seemed much longer than it should be (based on national standards), and that provides the greatest opportunity for improvement is the interval between the time a call comes to a station and the time a firetruck starts rolling to the scene (turnout time). That is to say, the other time interval – the travel time from fire station to fire scene – did not look like the place where the AAFD could improve most. Here’s a link to a GoogleSpreadsheet summarizing that analysis: [AAFD fire response data]

The ICMA report seems consistent with that conclusion [emphasis added]:

… ICMA data analysis reveals the greatest opportunities for improvements. According to NFPA standards, fire departments should comply with an 80 second turnout time for fire and special operations and 60 second turnout time for EMS response. The AAFD average turnout time was between 1.8 and 3.1 minutes. The average turnout time between 1 a.m. and 6 a.m. was longer than 2.9 minutes, significantly outside the recommendation. This could be due to a number of factors.

First, the method of communication between the dispatch center and the fire station may be causing a delay in getting the units out of the station faster. Improvements in this area may include equipping response vehicles with mobile data units, upgrading station notification systems to automatically turn on lights and open fire apparatus bay doors, or again, monitoring crew turnout to ensure a timely exit from the fire station. As might be expected, ICMA’s analysis indicates increased turnout times during the twenty-four hour shift schedule when crews are sleeping. In review of the current average response time for AAFD there appears to be opportunities to decrease response time without adding additional stations or resources.

At the same time, I don’t see a clear recommendation anywhere to reduce deployment to just two stations. That is, I don’t see an explicit case for a “super station” anywhere in the ICMA report. I might have missed it – so if you’re inclined, go ahead and unwrap this Christmas present yourself, and don’t just play with the box.

I’m also not sure it’s fair to conclude that the set of recommendations in the report explicitly rule out a “super station” concept as not viable. Based on the existence of maps showing two scenarios for such a concept, the downtown fire station #1 would be a part of that kind of solution, along with either station #6 or station #2 (a building now out of service as a fire station).

If this is a strategy that continues to receive study and review, and if it eventually finds its way to recommended implementation, then there’s no question that Ann Arbor residents will expect fire chief Chuck Hubbard to stand up in front of the coverage map and explain to the community how coverage would work. We would need to be prepared at least to listen to that explanation – if it ever even comes to that. And Hubbard would need to be prepared to hear why we think he might be wrong.

In the end, I think all the information we wanted regarding fire reports (for now) has now been provided by the city. But on the whole, I think too much effort on this project had to be invested in getting the information.

And many questions remain about that information. How are we supposed to interpret the fact that the city initially denied a FOIA request, denied it again on appeal, but then produced the information? Why does the final ICMA report have this weird “Draft” watermark? Who actually wrote the ICMA report? (Chief of police Barnett Jones gave the name of one of the authors at a city council meeting in May – Don James, a Florida firefighter.) What was the point of the earlier draft – why not just produce the final version to the city? Who at the city read the draft? What are the city’s next steps? Will there be public meetings presenting the report and fielding questions?

In a followup phone interview on Dec. 21, I talked to Powers about some of these questions. Speaking generally, he said his basic approach is first to follow the law and to follow the ethics policies of the ICMA – he’s a member. Part of that ICMA ethics policy, he continued, is that the public should have access to information because democracy works only if people are informed. As far as some delay in getting the report to the public, he noted that he does report to the city council, so from a pragmatic view, it’s important not to get out ahead of the council.

Accommodating the city council was not, of course, the basis of the city’s denial of the FOIA requests. So I asked Powers if we could interpret the release of the earlier draft, after an appeal had been denied, as an indication that the city had implicitly reversed its legal position. What exactly was the city’s legal position on that now? Powers indicated that he would defer to the city attorney as far as any “official legal position,” but indicated that he felt the city attorney would disagree with my assessment that the city was required to disclose the initial draft report when it was requested under the FOIA.

On the question of why the initial draft was produced by ICMA to the city at all, Powers indicated that this was fairly common for consultant work – it gives the client an opportunity to correct simple factual errors (the earlier draft spelled one of the cities in our region as “Lavonia”) and any significant mistakes, as well as to review whether the consultant covered the required scope of work.

The initial draft was examined by Powers, chief financial officer Tom Crawford, chief of police Barnett Jones, and fire chief Chuck Hubbard, Powers said. Even with respect to the report that’s now been widely circulated, Powers indicated that there may be some factual issues concerning response times contained in the report.

Next steps for the report are first to get ICMA to “clean up” the document. That includes removing the “Draft” watermark, and putting a date on the document, Powers said. Asked if there was a specific mechanism by which the ICMA report, once finalized, would be introduced to the public – through a public meeting, a presentation at a city council meeting, or a council work session – Powers indicated that the audience he’d be looking to now would be the rank-and-file firefighters. As for the general public, he said, there are no specific plans, but he’d work with the council on that.

On the more general question of taking a look at FOIA policies and procedures, Powers did not commit to anything, saying he’d need to give that some additional thought.

Steve Powers: Let’s Not Turn Him into Santa Clause

Now, it’s not entirely clear to me what the impact of this ICMA fire report episode will be on future information requests. I told Powers back on Friday, Dec. 16, that I’m less concerned about what information the city attorney believes he might be entitled to withhold, than I am about having the city simply produce it.

On the sketch I made earlier for a new city FOIA processing procedure, the city attorney would not necessarily have an automatic role to play in processing FOIA requests, even when some city staffer thinks an exemption might apply. Ultimately, though, whoever is doing the review – city service area staff or the city attorney’s office – would be affected most by the overarching point of Policy 104: “The general policy of the City is to not release information that is exempt from disclosure under FOIA or other law.” So that’s the part that I think needs attention.

In this recent case, I almost feel like Santa slid down the chimney in the form of Steve Powers and landed right on the FOIA and put it out – but unpacked a giant sack of toys for all us good girls and boys. But like I wrote earlier, the toys feel more like underwear and socks – this is basic stuff we should get year round. And I don’t want to have to ask Santa every time I can’t get the information I’m asking for.

So I’m betting on Steve Powers, but not as Santa.

The release of this information, after the initial denial (albeit not under the auspices of FOIA) could be the start of a shift in culture towards releasing information more easily. To effect that shift, Powers would have to balance the individual interests of the community, the city as an organization, the city council, and the city attorney. The most difficult piece, I think, could be the city attorney.

But as a former county administrator in Michigan, Powers has experience managing people who are a part of his organization, but who don’t necessarily report to him. When Powers interviewed for the Ann Arbor city administrator job, he talked about that balance, saying that elected officials who are part of the county government in Michigan (like the county clerk, or the county prosecutor) are independent: “They have to be respectful at budget time, but they can do what they want.” So Powers’ county government experience should be useful in “managing” the city attorney’s office within the city organization. That’s because the city attorney reports neither to voters nor to the city administrator, but rather to the city council.

And that brings us back to where we started: the Ann Arbor city council. For Powers to succeed, he needs to have the council’s support. I would hope that the council supports him if the new city administrator decides he wants to take a more liberal approach to releasing information to the community.

The city of Ann Arbor already has a good platform to build on – the DataCatalog and A2OpenBook, for starters. I’m looking forward to 2012. I feel like it could be a year when our stockings will be stuffed year round with information from the city.

In the meantime, please consider this column The Chronicle’s Christmas greeting. Please check your tree for water.

The Chronicle relies in part on regular voluntary subscriptions to support our coverage of local government and civic affairs. Click this link for details: Subscribe to The Chronicle. And if you’re already supporting us, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!

The city council will again take up the issue of licenses for medical marijuana businesses at its Monday, March 21 meeting.

Councilmember Sabra Briere (Ward 1) raised her hand and waited to be acknowledged by the mayor before speaking at the March 7, 2011 council meeting. (Photos by the writer.)

The council had previously heavily amended the licensing proposal at its Jan. 3, 2011 meeting as well as at its Feb. 7 meeting. The amendments made on March 7 put the council possibly in a position to make any final amendments, and to take its initial vote on the licensing proposal at its March 21 meeting. [.pdf of medical marijuana licensing proposal after March 7 amendments – "clean" version] [.pdf showing amendments undertaken at the March 7 meeting – "marked up" version]

Also at the March 21 meeting, the council is expected to extend the moratorium on use of property within the city for medical marijuana businesses – first enacted at the council’s Aug. 5, 2010 meeting. The initial moratorium was supposed to last only 120 days, but was subsequently extended at the council’s Nov. 15, 2010 meeting for another 60 days, and again at its Feb. 7, 2011 meeting an additional 60 days, until March 31, 2011. The council wants to coordinate the second and final vote on a medical marijuana zoning ordinance, which it passed initially on Oct. 18, 2010, with the vote on the licensing ordinance.

An additional medical-marijuana-related item, postponed from the March 7 meeting until March 21, is a proposal to enact a clear non-disclosure policy for information that the city might gather from people who have registered with the state of Michigan as medical marijuana patients and caregivers under Michigan’s voter-approved Michigan Medical Marijuana Act.

Part 1 of the March 7, 2011 city council meeting report – which deals with the non-medical marijuana issues on the agenda – was previously published as a separate article.

Medical Marijuana: Public Commentary

While the council has now heard extensive public commentary on medical marijuana from multiple people at more than half a dozen meetings, that commentary does not constitute a formal public hearing, which is required before the council takes a second and final vote on any ordinance. The council took its initial vote on a medical marijuana zoning ordinance in October 2010, but has yet to take its first vote on a licensing ordinance.

Ray Gould identified himself as a local resident, and a registered medical marijuana patient. He said that he was in the process of opening a medical marijuana dispensary when the council passed its moratorium. He reminded the council of the high percentage of Ann Arbor residents who had voted in favor of the Michigan Medical Marijuana Act. He told the council that currently 15 states allow use of medical marijuana in some form, and that 12 more states are considering similar legislation.

Gould cautioned that if the licensing rules require dispensaries to keep a list of suppliers, it would put a damper on suppliers. He suggested that a limit of 15 on the total number of licenses to be granted by the city is not enough, given the number of patients from outlying areas who might travel to Ann Arbor to get access to medical marijuana. He suggested that 25-30 licenses would be a better number. He pointed out that the moratorium was originally supposed to be in place for just 120 days [4 months], and now it’s been in place for nearly 8 months.

Dennis Hayes remarked that he was back for the fourth or fifth time. He pointed to the legislative intent of the MMMA, which is to enhance the ability of patients to get access to medical marijuana. He told the council that there have been several new developments. Gov. Rick Snyder had signed an executive order that transfers the Bureau of Health Professions from the Department of Community Health to the new Department of Licensing and Regulatory Affairs. This would transfer responsibility for processing applications for registered caregivers and patients, Hayes said, and the state is already 40,000 applications behind, so he didn’t think that this would improve things. It would likely not take just four months but rather six months for applications to be approved, he feared.

Hayes went on to describe a recent Michigan Court of Appeals ruling where the dissenting judge in the 2-1 ruling had argued that the MMMA should be used as a “shield” and not as a “sword.” [The case involved a man who was growing medical marijuana in a dog kennel, surrounded by a locked six-foot fence. The two judges in the majority ruled that this did not meet the MMMA requirement that medical marijuana be kept in "a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by registered primary caregiver or registered qualifying patient."]

Hayes said that while the licensing requirements being considered by the Ann Arbor city council did not constitute a single large sword, they were a set of smaller swords.

Chuck Ream – who addressed the council over a year ago on the topic of medical marijuana, and has frequently addressed the council over the last four months – told them there was not much more to say. It’s time to “gitter done,” he said. He asked how cultivation facilities actually helped patients – he feared they would contribute to getting Ann Arbor’s whole program busted. As far as record-keeping goes, he said there can’t be a permanent list of all suppliers kept by dispensaries. If they keep it for 30 days, he said, that is sufficient.

Ream said that in addressing the city council, encouraging them to do the right thing with respect to the licensing ordinance, he felt a bit like the birds in the story of Peter Rabbit who exhorted Peter to exert himself, and when he did, he set himself free.

Mike McLeod introduced himself on behalf of the Green Planet Patient Collective. He asked the council to reconsider the definition of “cultivation facility” – he was concerned that the current definition would apply to just a single plant grown outside someone’s home. He said that the collective believes the state law gives rights to patients and caregivers to grow plants without the requirement that they be put on a list. The city’s zoning ordinance would be sufficient, he said.

Matthew Abel introduced himself as an attorney with Cannabis Counsel in Detroit. He echoed what Hayes and Ream had to say about privacy and record-keeping. He said there’s concern due to the fact that the federal government has subpoenaed records and may continue to do so. He advises his medical marijuana clients to keep the minimum amount of records needed to maintain the business. With respect to cultivation facilities, he said that if they’re operated properly, they’re unlikely to draw interest from police.

Abel said he was mostly concerned about the number of licenses that would be available. He reported that he had a number of clients who were interested in doing business in Ann Arbor, but who were not doing so, because they had waited – they were being cautious to make sure they would have city approval before going forward. Now, he said, with the city council’s apparent intent to grant licenses to existing businesses on a priority basis, those who were cautious are being punished. He suggested doubling the number of dispensaries allowed. He also noted that existing businesses are concentrated mostly on the west side and suggested a system that allocates a certain number to each of the city’s five wards might work to spread things out geographically.

Medical Marijuana Non-Disclosure Policy

Before the council was a resolution that would articulate specifically that the city has a non-disclosure policy about information that might be collected in the course of processing medical marijuana licensing applications or enforcing zoning regulations. The resolution was brought forward by Sabra Briere (Ward 1). Its “Resolved” clauses read:

RESOLVED, That the following information, if provided to the City as part of the zoning and/or licensing process for medical marijuana caregivers, dispensaries or other providers, shall be protected against public disclosure in the course of the zoning and licensing process: the name, address and date of birth of any qualifying patient; the name, address and date of birth of a qualifying patient’s primary caregiver; the name, address and telephone number of a qualifying patient’s physician; any designation as to whether a qualifying patient or primary caregiver will be allowed under state law to possess marijuana plants for a qualifying patient’s medical use; and the names or other identifying information of persons to whom the Department of Community Health has issued registry identification cards; and

RESOLVED, That the foregoing information shall be exempted from disclosure in response to Freedom of Information Act requests on privacy grounds and/or based on the provisions of Michigan Medical Marihuana Act, unless those grounds for exemption are ruled invalid by a court.

The relatively brief council discussion – which came after more than two hours of deliberations on the medical marijuana licensing scheme – included Briere, city attorney Stephen Postema, Christopher Taylor (Ward 3) and Tony Derezsinski (Ward 2). Background for their conversation are privacy clauses in two different statutes: (1) the Michigan Freedom of Information Act (FOIA), and (2) the Michigan Medical Marijuana Act (MMMA).

In broad strokes, the FOIA says that public bodies must produce information upon request. But certain exemptions apply. The two FOIA exemptions relevant to the council’s discussion include one that allows a public body to withhold information that would represent an unwarranted intrusion on someone’s privacy, and another that allows a public body to withhold information, if an exemption is provided by some other statute [emphasis added]:

15.243 Exemptions from disclosure …
Sec. 13. (1) A public body may exempt from disclosure as a public record under this act any of the following:
(a) Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy. …
(d) Records or information specifically described and exempted from disclosure by statute.

The operative verb is “may,” which means that while a public body can choose to withhold certain information, it is not required by the FOIA to withhold it. The attorney general’s outline of the FOIA statute affirms the withholding of information as optional: “A public body may (but is not required to) withhold from public disclosure certain categories of public records under the Freedom of Information Act.” The attorney general’s outline was last updated a decade ago, but the AG’s office confirmed for The Chronicle that the document is still accurate – in the intervening period, no changes have taken place in the statute or with case law.

The Michigan Medical Marijuana Act has an exemption on disclosure of certain patient and caregiver information, which means that the FOIA itself would allow, but not require, withholding of that information – both under Sec. 13. (1)(a) and Sec. 13. (1)(d). In fact, the MMMA specifically references the information as exempt under the FOIA. But the MMMA non-disclosure clause is not optional. Here’s the set of confidentiality rules in the MMMA [emphasis added]:

(h) The following confidentiality rules shall apply:

1. Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.
2. The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Individual names and other identifying information on the list is confidential and is exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.
3. The department shall verify to law enforcement personnel whether a registry identification card is valid, without disclosing more information than is reasonably necessary to verify the authenticity of the registry identification card.
4. A person, including an employee or official of the department or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $1,000.00, or both. Notwithstanding this provision, department employees may notify law enforcement about falsified or fraudulent information submitted to the department.

The general sense among councilmembers who took part in the conversation seemed to be that the privacy concerns are important, that the resolution before them was essentially a reaffirmation of legal principles and city policies that are already in place, and that it would be best to wait and see the exact form that the city’s licensing and zoning regulations take before enacting such a policy.

Outcome: The council voted unanimously to postpone consideration of the non-disclosure resolution until its March 21, 2011 meeting.

Medical Marijuana Licensing: Council Deliberations

Councilmembers worked from more than a dozen sheets of amendments that had been provided by the city attorney’s office at the meeting. The sheets were color-coded to reflect various alternatives for some of the amendments. No extra copies were available for members of the audience to try to follow the council’s conversation. However, the amendments were each read aloud before they were discussed.

At their March 7 meeting, councilmembers worked their way through more than a dozen pages of green and yellow highlighted amendments to the proposed medical marijuana ordinance.

Sabra Briere (Ward 1) led the council in a first pass through the amendments, but not in the order of the document – she’d identified some that she felt would be dispatched with relatively little discussion. After that initial pass, Sandi Smith (Ward 1) asked that the remaining amendments be considered in the order they appear in the ordinance.

This report is organized mostly along the lines of the chronology of the council’s deliberations. In some instances, the report consolidates discussion and votes on related amendments.

Generating the most discussion was an amendment related to how to track down information about the source of marijuana, in the event of a public health risk.

[.pdf of medical marijuana licensing proposal after March 7 amendments – "clean" version] [.pdf showing amendments undertaken at the March 7 meeting – "marked up" version]

MML Amendment: State or Local Law, not Federal

Sabra Briere (Ward 1) told her council colleagues that insertions of the phrase “state or local” in several places in the ordinance is meant to make clear that the ordinance would apply to state or local law, but not federal. Examples of the insertion are as follows.

6:420. Prohibited Acts.
It shall be unlawful for any person to: …
(b) Produce, distribute or possess more medical marijuana than allowed by any applicable state or local law.
(c) Produce, distribute or possess medical marijuana in violation of this chapter or any other applicable state or local law.

The ordinance as amended includes six instances of “state or local law.”

Outcome: The council voted unanimously to amend the ordinance by inserting “state or local” law.

MML Amendment: Punishments – Reasons for License Revocation

The council considered several separate amendments to the section of the ordinance dealing with reasons for revocation of a license. Subsection (7) was a new addition. Others were wording changes to existing subsections. In their amended form, the conditions for license revocation are as follows:

6:421. License Revocation.
A license issued under this chapter may be suspended or revoked for any of the following violations:

1. Any person required to be named on the application of the license is convicted of or found responsible for violating any provision of this chapter;
2. The application contains any misrepresentation or omission of any material fact, or false or misleading information, or the applicant has provided the City with any other false or misleading information related to the medical marijuana business;
3. Any person required to be named on the application is convicted of a crime which, if it had occurred prior to submittal of the application, could have been cause for denial of the license application;
4. Marijuana is dispensed on the business premises in violation of this chapter or any other applicable state or local law, rule or regulation;
5. The cultivation facility or dispensary is operated or is operating in violation of the specifications of the license application, any conditions of approval by the City or any other applicable state or local law, rule or regulation.
6. The City, or the County or the MDPH or any other governmental entity with jurisdiction, has closed the business temporarily or permanently or issued any sanction for failure to comply with health and safety provisions of this chapter or otherwise applicable to the business or any other applicable state or local law.
7. The dispensary or cultivation facility is determined by the City to have become a public nuisance.

Mayor John Hieftje said that with respect to 6:421 (7), he was happy to see language appearing in the ordinance that would allow the city to act, if a medical marijuana business became a problem – not that he anticipated this would happen.

Stephen Kunselman (Ward 3) wanted to know what the difference is between being “convicted of” violating a law and being “found responsible” for violating a law. Assistant city attorney Kristen Larcom clarified that when you’re guilty of violating a criminal law, that is a conviction; when you violate a civil law, you are found responsible for violating it.

Kunselman wondered if 6:421(6) made sense, given that he understood that the state statute didn’t actually give any credence to dispensaries as businesses – how could the MDPH shut down a business that was not acknowledged to exist? City attorney Stephen Postema allowed that it was not possible to anticipate all of the changes that might take place in the future.

Also related to 6:421(6), Marcia Higgins (Ward 4) wondered what would happen if the state took action on the regulation of dispensaries, and Ann Arbor’s ordinance is different from the state law – would Ann Arbor have to conform with the state’s law? Postema said the city would need to be consistent with the state law, in whatever way it is eventually clarified – legislatively, or through court cases.

Outcome: The votes on the amendments to the section on reasons for license revocations were all unanimous.

MML Amendment: Punishments – Public Nuisance

In addition to serving as a possible reason for revocation of a license, the following amendment specified that being found to be a public nuisance could result in the usual range of penalties for being a nuisance:

6:422. Revocation Not Exclusive Penalty.
Nothing in this chapter shall be deemed to prohibit the city administrator or designee from imposing other penalties authorized by this code or other ordinance of the city, including filing a public nuisance action or any other legal action in a court of competent jurisdiction.

Outcome: The council voted unanimously, without deliberation, to add the filing of a public nuisance action to the set of punishments that could be applied to a medical marijuana business, beyond the revocation of its license.

MML Amendments: Privacy – Licensing Board Membership

Privacy issues generally prompted a lot of discussion by the council. One such issue came up with a proposed amendment that addressed the membership of the licensing board. In the version the council began with, the membership was defined as “one member of Council, one physician, one medical marijuana caregiver.” An amendment proposed by Sabra Briere (Ward 1) would have extended the membership as follows: “one member of Council, one physician, one medical marijuana caregiver, one medical marijuana patient, and one Ann Arbor resident.”

The amendment as eventual approved preserved the additional number of members but struck the requirement that there be two slots for people registered with the Michigan Department of Public Health – one as a patient and one as a caregiver. As approved, the amendment also added extensive material about the basis the board can use for awarding licenses:

6:415. License Required, Number of Licenses Available, Eligibility.
…
(7) The City Council will establish a licensing board to consist of one member of Council, one physician, and three other Ann Arbor residents, these are Mayoral appointments. The Board will annually review and recommend the licensing criteria, the number of licenses authorized, the license fee structure, and recommend approval of license applications.

While a cultivation facility or dispensary shall not be eligible for a license if any person required under this chapter to be named on the application has been convicted of a felony involving controlled substances, evidence that a person required under this chapter to be named on the application has been convicted of any other type of felony, under the law of Michigan, the United States, or another state, may be used by the Board in its determination of whether or not to recommend the issuance of a license to the applicant. Among other things, the Board shall consider whether the substance of the offense would tend to indicate a likelihood that the person would be unable to serve the public in a fair, honest and open manner or to dispense or cultivate medical marijuana in compliance with the MMMA, whether there is evidence that the person has been rehabilitated, and the age of the conviction.

In response to a question from Tony Derezinski (Ward 2), Briere clarified that the intent of the wording for the membership – specifying that one be a resident of Ann Arbor – was not meant to imply that the other members would not be residents of Ann Arbor. Mayor John Hieftje indicated that the city followed a policy that all board and commission appointments needed to be residents of Ann Arbor unless they had special skills or background, if supported by a super-majority of eight members of the city council.

City attorney Stephen Postema.

City attorney Stephen Postema suggested that inclusion of the word “other” in “one other Ann Arbor resident” would imply that the previous members in the list are also Ann Arbor residents.

The council entertained brief discussion about the annual nature of the review and whether the licensing board was just recommending approval of licenses. But the main focus of their conversation was the implications of serving on a board or commission for the people filling the proposed slots for a patient and a caregiver – board and commission members have their addresses made public as a routine part of the confirmation process.

Marcia Higgins (Ward 4) was first to raise the privacy issue. She wondered how the patient and caregiver members would have their information protected. Derezinski said people would serve with the knowledge that this information would be made public – it might dissuade some, but not most. Christopher Taylor (Ward 3) suggested that there is ample evidence that there’s a willingness for people to volunteer that information – the number of people who’d addressed the council by introducing themselves as patients and caregivers was evidence of that. Hieftje was concerned, nonetheless, that it could result in a very narrow pool of possible applicants.

Responding to Taylor’s point, Higgins noted that people speaking to the council did not disclose their addresses. She also stressed that this private information would be a part of the public record for a very long time.

The council opted to lump the two registered slots into a total of three members who would be at-large Ann Arbor residents.

Outcome: The council unanimously approved the amendment on licensing board membership.

MML Amendments: Coordination with General Licensing

The medical marijuana licensing scheme is proposed to be a separate chapter in the city of Ann Arbor code – Chapter 71. The city code already contains some general provisions for business licensing in Chapter 76, called “Licenses.”

An amendment to the general provisions part of the medical marijuana licensing code was intended to establish the relationship between the two chapters of the city code, in the event there is a conflict. Assistant city attorney Kristen Larcom indicated to the council that she had not been able to identify any conflicts between the two chapters. The following amendment was eventually withdrawn:

6:416. General Provisions.
(5) The provisions of Chapter 76 of this Code apply to this Chapter unless this Chapter establishes another procedure.

For his part, Christopher Taylor (Ward 3) saw the amendment as essentially a direction to an applicant for a license to have a look at Chapter 76 as well – that kind of direction could be provided on the application form, he said. In offering a rationale for including the language, Sabra Briere (Ward 1) said that there is material in Chapter 76 on general licensing that could be added to the medical marijuana licensing chapter – for example, the right to appeal –but that it would repeat the content of Chapter 76. The idea was to avoid redundancy, Briere said.

As it became clear that the reference to a different chapter of the code was required, because there was material in that chapter that potentially is relevant to medical marijuana licensing, Marcia Higgins (Ward 4) displayed some irritation with city attorney Stephen Postema. She saw the approach of separating general licensing from medical marijuana licenses as in conflict with the council direction to his office to simplify the city code wherever possible and to consolidate all relevant codes in the same place. She mentioned the Zoning Ordinance Reorganization project (ZORO) as a specific example of that goal to consolidate and eliminate redundancy.

Postema replied to Higgins by saying that it would have been possible to write the medical marijuana licensing into the existing Chapter 76 on licensing. However, he characterized the medical marijuana licensing as a unique kind of license, but that it would “bog down” the business licensing ordinance if it were included there.

In response to Postema’s characterization of the medical marijuana licensing as an “unusual” kind of license, Higgins told him she did not think it was “unusual” because the city council was looking to implement it and it had been voter-approved.

Outcome: The amendment referring to Chapter 76 was withdrawn.

MML Amendments: Wording of Title

An amendment receiving no comment or deliberations was a title change to the section on application requirements. As amended, the title reads:

[amended text] 6:417. Application Requirements for New Annual License or Renewal of Existing License; License Requirements for New License and for Renewed License

The amendment replaced the old title, which was:

[unamended text] 6:417. Application for and Issuance of New Annual License or Renewal of Existing License for Medical Marijuana Dispensaries and Medical Marijuana Cultivation Facilities.

Outcome: The amendment on the wording of the title was unanimously approved without discussion.

MML Amendments: Definitions

Definitions for “dispensary” and “cultivation facilities” were modified; a definition for MDCH was added:

6:414. Definitions.
…
(b) Medical marijuana cultivation facility means a structure or each space in a structure that is separately owned or leased by a person other than the owner of the structure, in which marijuana plants are being cultivated in compliance with the Michigan Medical Marijuana Act. For purposes of this chapter, a medical marijuana home occupation as defined in Chapter 55 (Zoning) is not considered to be a medical marijuana cultivation facility.
(c) Medical marijuana dispensary means one or more caregivers operating at a fixed location, in compliance with the Michigan Medical Marijuana Act, for the purpose of transferring marijuana at that location to one or more persons whose medical use of marijuana is protected under the Michigan Medical Marijuana Act. For purposes of this chapter, a medical marijuana home occupation as defined in Chapter 55 (Zoning) is not considered to be a medical marijuana dispensary.
…
(f) MDCH means the Michigan Department of Community Health.

Outcome: The council unanimously voted to amend the definitions.

MML Amendments: Privacy – Getting Information on Past Criminal History

As part of the application form requirements, an amendment inserted additional language so that applicants would need to provide a statement about criminal backgrounds of people named on the application. City attorney Stephen Postema explained that such a requirement is appropriate in light of the state’s ruling that the LEIN (Law Enforcement Information Network) cannot be used for background checks for medical marijuana issues.

(2) An application for a new annual license or the renewal of an existing license for a cultivation facility or dispensary, shall be submitted to the City Clerk on a form provided by the City, which shall fulfill all of the requirements indicated on the form, including but not limited to:
…
(f) A statement with respect to each person named on the application whether the person has:
(i) Ever been convicted of a felony involving controlled substances as defined under the Michigan public health code, MCL 333.1101, et seq, the federal law, or the law of any other state and, if so, the date of the conviction and the law under which the person was convicted;
(ii) Ever been convicted of any other type of felony under the law of Michigan, the United States, or another state, and, if so, the date of the conviction and the law under which the person was convicted.

If a criminal background check can’t be done through LEIN, Marcia Higgins (Ward 4) wanted to know what it would cost using some other method. Assistant city attorney Kristen Larcom thought it might cost around $15, but she was not sure. Not being able to use LEIN, said Larcom, had the disadvantage of not automatically getting information from states other than Michigan. Sabra Briere (Ward 1) clarified that the cost of doing a criminal background check would be covered as a part of the application fee.

Outcome: The council unanimously approved the inclusion of a statement on criminal history in the application.

MML: Amendments – Application versus License Requirements Part 1

A set of changes that were intended in part to separate the application requirement from the requirements on awarding a licenses, read, in amended form, as follows:

(2) An application for a new annual license or the renewal of an existing license for a cultivation facility or dispensary, shall be submitted to the City Clerk on a form provided by the City, which shall fulfill all of the requirements indicated on the form, including but not limited to:
…
(h) Payment of a non-refundable application fee, which shall be determined by resolution of the City Council.

Additional amendments that were a part of license requirements were initially included in a motion, then withdrawn after discussion, leaving just the payment of the application fee.

Outcome: The council unanimously approved the payment of the application fee as a part of the application requirements.

MML: Amendments – Application versus License Requirements Part 2

Sabra Briere (Ward 1) then focused the council’s attention just on the set of amendments for licensing requirements. In their approved form, they read as follows:

(3) License Requirements. A new license shall not be issued to a dispensary or cultivation facility until the applicant for the license complies with all of the following requirements:
(a) The applicant has submitted a complete application and the application fee.
(b) The proposed dispensary or cultivation facility is located in a zoning district that permits its operation.
(c) The applicant has a valid and current certificate of occupancy.
(d) The applicant has installed a sign containing the following statement:
THE MICHIGAN MEDICAL MARIHUANA ACT ACKNOWLEDGES THAT “ALTHOUGH FEDERAL LAW CURRENTLY PROHIBITS ANY USE OF MARIHUANA EXCEPT UNDER VERY LIMITED CIRCUMSTANCES, STATES ARE NOT REQUIRED TO ENFORCE FEDERAL LAW OR PROSECUTE PEOPLE FOR ENGAGING IN ACTIVITIES PROHIBITED BY FEDERAL LAW. THE LAWS OF ALASKA, CALIFORNIA, COLORADO, HAWAII, MAINE, MONTANA, NEVADA, NEW MEXICO, OREGON, VERMONT, RHODE ISLAND, AND WASHINGTON DO NOT PENALIZE THE MEDICAL USE AND CULTIVATION OF MARIHUANA. MICHIGAN JOINS IN THIS EFFORT FOR THE HEALTH AND WEALTH OF ITS CITIZENS.” SEE, MCL 333.26422(c). IF YOU HAVE ANY QUESTIONS OR CONCERNS PLEASE CONSULT WITH YOUR ATTORNEY.
(e) The applicant has installed the following security measures on the premises: …

Christopher Taylor (Ward 3) wanted to make sure that the language is sufficiently clear to guard against the idea that there’s any kind of a “right” to a license if all conditions are met. City attorney Stephen Postema said he’d need to think about it further. Taylor was interested specifically in the case where there were no licenses available for issuance. Stephen Kunselman (Ward 3) wanted some clarification about how the licensing board would be doing a review that is annual. Tony Derezinski (Ward 2) suggested that there would be “comparative review,” where there are a limited number of licenses and the relative merits of applicants would have to be evaluated. Derezinski went on to say that the medical marijuana licenses would be very valuable.

Left to right: Councilmembers Carsten Hohnke (Ward 5), Stephen Kunselman (Ward 3), Sandi Smith (Ward 1).

Marcia Higgins (Ward 4) was concerned that an applicant could invest a lot of money in obtaining a certificate of occupancy – why would they do that unless they’d obtained a license?

The original amendment that Briere introduced, supported by Sandi Smith (Ward 1), included an option that did not require the posting of a sign: “The applicant must install a sign, or provide the city with a written plan of an alternate means by which patients, each time they visit the business will be provided with the following written statement…”

The original amendment included requirements on lettering, both for the signage and for the individually-issued written statements: ” … sign must have letters no smaller than one inch high and be installed in a location visible to all persons who enter the premises. If the applicant elects to provide the statement to patients individually in writing, then that statement must be in capital letters in bold type no smaller than 14pt font.”

Stephen Rapundalo (Ward 2) wanted to know what the rationale was for the alternative to a sign. Smith said that a sign could become invisible, after walking past it several times. Having something in your hand would be more effective. Rapundalo was concerned about the ability to enforce compliance – a sign is very easy to check for compliance. If a dispensary thinks it can get away without displaying a sign, then they wouldn’t display one, he said.

Smith said she would eventually be suggesting that an additional piece of paper be given to every visitor – with educational information about substance abuse – and her vision was to use the same mechanism to convey the information on the sign. Carsten Hohnke (Ward 5) said he felt it was relatively innocuous to require posting a sign as a means of compliance.

Taylor proposed amending out the alternative to posting the sign. Councilmembers voted to eliminate the alternative, over dissent from Smith and Briere.

Kunselman questioned whether certificates of occupancy could be issued to applicants – they could only be issued to facilities, he contended. Postema allowed that there had been a lot of people “messing around” with the language and that he would look into that specific issue.

Outcome: The council voted unanimously to amend the license requirements without the alternatives to posting signs.

MML: Amendments – Insurance and License Fees

An amendment to the license requirements added requirements on proof of insurance. As approved, the amended portion reads:

(3) License Requirements. A new license shall not be issued to a dispensary or cultivation facility until the applicant for the license complies with all of the following requirements:
…
(g) The applicant provides the City with a certificate signed by a qualified agent of an insurance company evidencing the existence of valid and effective policies of the following types of insurance, as well as a copy of an endorsement placed on each policy requiring ten days’ notice by mail to the City before the insurer may cancel the policy for any reason:
(i) Workers’ compensation insurance in accordance with Michigan statutory limits and Employers Liability Insurance with a minimum limit of $100,000 each accident for any employee.
(ii) Public liability and personal injury insurance with minimum limits of $500,000.00 for each occurrence as respect to bodily injury liability or property damage liability, or both combined. Documentation must explicitly state the following:
(a) the policy number;
(b) name of insurance company;
(c) name and address of the agent or authorized representative;
(d) name and address of the insured;
(e) location of coverage;
(f) policy expiration dates; and
(g) specific coverage amounts.
An original certificate of insurance may be provided as an initial indication of the required insurance. Applicant shall be required to continue without interruption during the term of the license the above named insurance coverages. If any of the above coverages expire by their terms during the term of a license, the Applicant shall deliver proof of renewal and/or new policies to the Administering Service Area/Unit at least ten days prior to the expiration date. Insurance companies, named insureds and policy forms shall be subject to the approval of the City Attorney, within five business days. Insurance policies shall not contain endorsements or policy conditions which reduce coverage required under the terms of the license.
(h) The applicant has paid the non-renewable license fee, as determined by resolution of the City Council.

The timeframe for the city attorney to approve issuance forms was inserted at the request of Marcia Higgins (Ward 4).

In the original amendment by Sabra Briere (Ward 1), there was an additional alternative for the license fee: “In the fee resolution, Council may establish a two-tiered license fee such that there is a lesser license fee for a business that makes a specific donation to a non-profit educational organization, which is listed in the resolution and the purpose of which is to educate and address drug abuse issues or to provide education as to best practices for ensuring to the extent possible that the medical marijuana cultivated for and provided to patients is safe and not harmful to their health.”

Christopher Taylor (Ward 3) asked about the material costs in processing applications, and city attorney Stephen Postema confirmed that they would likely exceed four figures. Sandi Smith (Ward 1), who’d supported the inclusion of a nonprofit donation provision, explained that it was prompted by a conversation with someone working at the state level in Colorado, who’d advised that once marijuana is more readily available – as it now is in that state – it can lead to substance abuse problems. Both Taylor and Stephen Rapundalo (Ward 2) felt that the city already has a systematic way of determining which nonprofits it allocates money to. [Rapundalo is one of the architects of the scoring metric for that system.] The council amended out the alternative, over the dissent of Smith.

Outcome: The council voted to amend the license requirements to include the insurance provisions, but not for the fee structure to include nonprofit donations.

MML Amendments: Licensing Issuance

After some wording changes to make clear that a license would be issued only if a license is available, the condition on issuance of a license was amended as follows:

6:418. Issuance of License. The city administrator or designee shall issue a license for a cultivation facility or dispensary to the applicant if a license is available for issuance and if all requirements of this Chapter have been met. …

Marcia Higgins (Ward 4) wanted to clarify that the city administrator is also empowered to deny a license if conditions had changed since the application had been received by the city.

Outcome: The council unanimously approved the amendment to the license issuance language.

MML Amendments: Safety/Privacy – Contact Information about Product

In order to address the concern that a patient needs to have some way of getting in touch with someone about the product they’d been provided, as well as have access to information about substance abuse, an amendment was proposed to include contact information on the required labeling:

(4) All marijuana delivered to a patient shall be packaged and labeled as provided in this chapter. The label shall include:
…
(f) The name, address, e-mail address, and telephone number of an authorized person who a patient can contact with any questions regarding the product.
(g) The name, address, e-mail address, and telephone number of at least one organization who may be contacted by a patient who has concerns about substance abuse of drugs, including marijuana.

Outcome: Without discussion, the council unanimously voted to amend the required labeling to include contact information.

MML Amendments: Safety/Privacy – Product Sourcing Records

After a lengthy discussion, the council elected to leave intact a requirement on dispensaries’ record-keeping:

6:419. Conduct of Business at Cultivation Facility or Dispensary.
(9) A cultivation facility or dispensary shall keep records of the persons from whom they received marijuana in any form, and shall make the records available to the City for review upon request.

One of the proposed amendments read aloud by Sabra Briere (Ward 1) [developed by Sandi Smith (Ward 1)], but ultimately not approved, was as follows: “A cultivation facility or dispensary shall keep records for each delivery of marijuana in any form to the cultivation facility or the dispensary of the following: the registry number on the caregiver identification card that the MDCH issued to the caregiver who is delivering the marijuana, the registry number on the caregiver identification card that the MDCH issued to the patient who accepted delivery, the type and volume of the product and the date of the delivery. These records shall be made available to the City for review upon request.” [A different alternative, which was not moved for consideration by the council, eliminated reference to the registry numbers and required the dispensary to create a unique identification system.]

Smith did not want the language included that would require a dispensary to make records available to the city upon request. She simply wanted a patient to have some way of tracing the origin of problematic marijuana through the dispensary. She floated the idea of requiring that a request for records be triggered by some identified public health risk.

Mayor John Hieftje was worried that such an approach wouldn’t provide any oversight, in the event that there was a public health issue. Stephen Kunselman (Ward 3) noted that the city of Ann Arbor does not have a health department and thus he did not feel that the city had any expertise to trace the product and to determine if a patient was sickened by a particular product.

The discussion turned to what entity should take action in response to any kind of public health problem suspected to be due, say, to tainted product. Tony Derezinski (Ward 2) pointed to the licensing board as a possibility – it should be up to that board to request the information. Stephen Rapundalo (Ward 2) floated the idea that it should be state or county health officials.

The conversation by the council on this point was lengthy. But the perspective that seemed to be persuasive to many councilmembers was the idea that before tasking public health officials with a responsibility to try to track down tainted product, it would be important to check with relevant agencies to see if they’re willing and able to take on such a task, including the Michigan Dept. of Public Health.

Outcome: The council voted unanimously against the amendment, leaving 6:419 (9) intact.

MML Final Outcome

If the city council votes on an ordinance at a first reading, but then subsequently amends it, sometimes the change is substantial enough that it must be voted again as a first reading before proceeding to its public hearing and second reading.

Mayor John Hieftje.

So midway through the deliberations, Mayor John Hieftje asked city attorney Stephen Postema if any of the changes that had been identified as possibly needing to be reworked would necessitate a return to first reading – if the council were to vote on the entire ordinance that night and to make amendments along the lines they’d discussed. At that point, Postema felt that none of the changes he foresaw would be substantive.

However, after discussion of 6:419 (9) Postema was more hesitant, when queried by Christopher Taylor (Ward 3). Postema said it’d be a “close call.” Taylor was inclined to give the ordinance its first vote, even if it meant that the council eventually had to give it an additional first vote. Sandi Smith (Ward 1) had an idea of a revision to 6:419 (9) that would be different from the current version and moved for a postponement on those grounds. Marcia Higgins (Ward 4) was keen to have a clean version available before giving the ordinance its first vote.

Hieftje said he didn’t have a problem delaying again, and said no one should be saying that the council couldn’t get its work done. They were simply taking a great deal of care, he said.

Outcome: The council voted to postpone consideration of the medical marijuana licensing ordinance until its March 21, 2011 meeting.

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

Next council meeting: Monday, March 21, 2011 at 7 p.m. in the Washtenaw County administration building, 220 N. Main St. [confirm date]