Chris Haslinger (second from right), director of training for the United Association (UA) of plumbers and pipefitters, received a proclamation from the county board of commissioners at the board’s Aug. 6 meeting. They were gathering for a photo to mark the event. From left: Conan Smith, Andy LaBarre, Alicia Ping, Yousef Rabhi, Chris Haslinger, and Verna McDaniel, the county administrator. (Photos by the writer.)

The county has determined that it’s authorized to collect up to 1/10th of a mill for support of indigent veterans, without seeking voter approval. That’s because the state legislation that enables the county to levy this type of tax – the Veterans Relief Fund Act, Public Act 214 of 1899 – predates the state’s Headlee Amendment. The county first began levying this millage in 2008, and collects the tax in December. The current proposal is to levy 1/27th of a mill in December 2014, which is expected to raise about $540,887 in revenues for use in 2015.

The county’s position is that Act 88 can also be levied without voter approval to fund economic development and agricultural activities. This year, the proposal is to levy 0.07 mills in December 2014 – the same rate that was levied in 2013. It’s expected to raise an estimated $1,022,276 in property tax revenues.

Final action on these tax levies is expected at the board’s Sept. 3 meeting.

Also related to Act 88, the board approved allocations of $87,760 in Act 88 revenues that were collected in 2013, to support six projects. Four of the projects are administrated by Ypsilanti-based Growing Hope, with the remaining two projects initiated by the Michigan State University Product Center.

During the Aug. 6 meeting, commissioners approved amendments to both the Act 88 projects resolution and the resolution to levy the tax this year. The amendments directed the county’s corporation counsel to provide a written opinion about how Act 88 revenues can lawfully be used, and how the tax can be lawfully levied without a vote of the people. The amendments were brought forward by Dan Smith (R-District 2).

In other action, the board received a second-quarter budget update, with projections showing a general fund surplus of $211,920 for the year. The board also made mid-year budget adjustments, which included allocating a $3.9 million surplus from 2013 into unearmarked reserves.

Commissioners approved a new policy to guide decisions on tax increment finance (TIF) proposals, and supported revised rules and guidelines from the water resources commissioner. Those revisions relate to procedures and design criteria for stormwater management systems.

A proclamation made during the Aug. 6 meeting honored Herb Ellis Sr., the first black man to be elected to the Washtenaw County board of commissioners. Ellis was elected in 1968 and served until 1982, representing Ann Arbor. During that time he also was the first black chair of the county board. He passed away on July 10, 2014 at the age of 98.

Another resolution recognized the contributions of United Association (UA), a union of plumbers, pipefitters, sprinkler fitters, welders, and heating, ventilation, air conditioning and refrigeration (HVACR) technicians. They’re in this area from Aug. 9-15 for their 61st annual training program, and have announced a new 15-year agreement to continue the program at the Washtenaw Community College.

The Aug. 6 meeting was held one day after the Aug. 5 primary elections. At the start of the meeting, board chair Yousef Rabhi congratulated all primary candidates, and said he looked forward to working with Ruth Ann Jamnick, the winner of the District 5 Democratic primary. He quickly added “pending the general election, but I think…” – a comment that drew laughs. District 5 – which covers August Township and parts of Ypsilanti Township – is heavily Democratic. Jamnick, who prevailed in the four-way Democratic primary, will face Republican Timothy King in the Nov. 4 general election. District 5 was the only race that was contested for the county board, with incumbent Rolland Sizemore Jr. not seeking re-election. Incumbents in all other districts of the nine-member board were unchallenged in the primary.

At the end of the meeting, the board voted to enter into a closed executive session for the purpose of reviewing attorney-client privileged communication. It is one of the exemptions allowed under the Michigan Open Meetings Act.

After about 30 minutes, three commissioners returned to the boardroom – Dan Smith (R-District 2), Alicia Ping (R-District 3) and Conan Smith (D-District 9). They indicated to The Chronicle that they thought the discussion in the closed session had strayed away from the limits imposed by the OMA, and they had left the session because of that. They did not state what the nature of the discussion had been, nor the topic of the session.

Soon after, the remainder of the board emerged from the closed session, and the meeting was adjourned.

Act 88 Grants, Levy

The Aug. 6 agenda included a resolution to approve allocations to six projects, using funds from an Act 88 millage that the county levies each year. Commissioners were also asked to give initial approval to levy that tax.

Tony VanDerworp, the county’s economic development officer.

The county’s position is that Act 88 of 1913 can be levied without voter approval to fund economic development and agricultural activities. This year, the proposal is to levy 0.07 mills in December 2014 – the same rate that was levied in 2013. It’s expected to raise an estimated $1,022,276 in property tax revenues.

In previous years, the resolution setting this millage has outlined how the revenues would be allocated. The largest allocations have gone to the county’s office of community & economic development, and to the nonprofit Ann Arbor SPARK.

However, at its Nov. 6, 2013 meeting, the board adopted a new policy for allocating Act 88 revenues, drafted by Conan Smith (D-District 9). [.pdf of Act 88 policy] The policy included creating an Act 88 advisory committee to make recommendations to the board and prepare an annual report that assesses how Act 88 expenditures have contributed toward progress of goals adopted by the board. The policy allows the committee to distribute up to 10% of annual Act 88 revenues without seeking board approval. The policy also allocates up to 30% of revenues to the county office of community & economic development, which administers Act 88 funding.

This year, the 10% amounts to $91,753. Of that, $3,993 remains unallocated and will stay in the Act 88 fund balance to support future projects. Beyond that, a total of $87,760 in funding was recommended for six projects initiated by two organizations – the Michigan State University Product Center, and Ypsilanti-based Growing Hope [.pdf of staff memo]:

• $10,060 to the MSU Product Center to study the potential for enhanced food processing in Washtenaw County.
• $12,700 to the MSU Product Center to develop “MarketMaker,” a food industry business network and database.
• $20,000 to Growing Hope/Reconsider to run community education events on the Michigan Invests Locally Exemption Act and to study the potential and processes for investing locally in Washtenaw County.
• $13,000 to Growing Hope/Revalue to provide two full-day educational events to assist investors in incorporating local investment offerings into their financial plans.
• $13,000 to Growing Hope to create a study on increasing food assistance sales at farmers markets in Washtenaw County.
• $19,000 to Growing Hope to support the development of an Ypsilanti “MarketPlace,” a year-round farmer’s market, and “MarketHub,” a food distribution center serving underserved communities.

These recommendations were made to the county board by the Act 88 advisory committee. Members are: County commissioners Ronnie Peterson (D-District 6), Alicia Ping (R-District 3) and Conan Smith (D-District 9); Todd Clark, president of United Bank & Trust; and Art Serafinski, chair of the Ypsilanti Convention & Visitors Bureau board. Staff support was provided by the county’s office of community & economic development (OCED), including economic development officer Tony VanDerworp, who attended the Aug. 6 meeting along with OCED director Mary Jo Callan.

Act 88 Grants: Board Discussion

Commissioner Dan Smith (R-District 2) began the discussion by noting that he’s had some long-standing concerns about the legality of how the county is using Act 88 funds. Rather than sorting those issues out that night, he said he’d rather work with the county’s corporation counsel and come to an understanding about it.

He then brought forward an amendment for the projects resolution, requesting that corporation counsel provide the board with a written opinion about the lawful use of the sums raised under Act 88. Smith’s original proposed amendment stated:

FURTHERMORE BE IT RESOLVED that the Washtenaw County Board of Commissioners directs Corporation Counsel to provide an exhaustive written opinion, by December 31, 2014, detailing the lawful uses of sums raised under Act 88 of 1913 (MCLA 46.161), and that this opinion address in similar manner other possible interpretations.

Smith’s motion did not receive support from any other commissioners to bring it forward for discussion, so Alicia Ping (R-District 3) declared it dead due to the lack of support.

Dan Smith (R-District 2).

Conan Smith (D-District 9) and Yousef Rabhi (D-District 8) had been out of the room during this part of the meeting, and returned to their seats just after the motion had been declared dead. Conan Smith said he’d be willing to support Dan Smith’s motion. Alicia Ping (R-District 3) – vice chair of the ways & means committee, who was chairing the meeting in the absence of Ways & Means chair Felicia Brabec (D-District 4) – allowed D. Smith to reintroduce the motion. It was then supported by C. Smith.

C. Smith said there’s been a lot of confusion about Act 88, “and we face it every year.” He and D. Smith had spent a lot of time on the phone talking about the meaning of the act, he said, so “it would be really helpful to have an interpretation that we can use as we go into our granting processes and the distribution of these funds.”

At the Act 88 committee meeting that was held earlier in the day, C. Smith said, they began talking about the grants process for next year, and about how to ensure that the allocations relate specifically to the purposes of the act – “just to make sure we’re on the straight and narrow.” One way to go about it is to leave it up to the committee to determine, though none of the committee members are lawyers, he noted. He thought it would be great to have a statement to rely on. Even if it’s not possible to be definitive – because the law itself is unclear – it would be useful to know what ways the law could be interpreted, he said. C. Smith concluded that he was comfortable with the amendment.

Andy LaBarre (D-District 7) asked Curtis Hedger, the county’s corporation counsel, about what legal effect Hedger’s legal opinion would have – “what would it get us on the hook for down the road, good or bad?”

Curtis Hedger, the county’s corporation counsel.

Hedger replied that like any opinion, it would simply be his advice to the board. As policymakers, ultimately it’s the county commissioners who decide what to do, he noted. If the amendment were approved, he’d give them his best interpretation of how the Act 88 revenues can be spent. Hedger said that asking him to come up with alternative interpretations, as directed by D. Smith’s draft amendment, was a little “touchy-feely.” He added: “That would just be me speculating.”

As far as putting the county on the hook one way or another, Hedger said he didn’t think that was an issue, because it would just be an opinion.

Yousef Rabhi (D-District 8) asked what D. Smith meant by the word “exhaustive.” D. Smith replied that Hedger has already provided the board with opinions on other topics that explain how phrases could be construed in different ways. That’s what D. Smith intended by “exhaustive.” The language in MCLA 46.161 is extremely convoluted, he added, so Hedger could explain how parsing the grammar in different ways would yield different interpretations. Then it’s up to the board to decide which interpretation to use, he said.

Rabhi said he thought an opinion was simply an opinion – not a description of other opinions. He wasn’t sure it was an appropriate approach to ask for alternative interpretations. Rabhi would support asking Hedger to give the board his interpretation of the law, but it wasn’t Hedger’s job to do more than that.

C. Smith said he’d asked D. Smith to include that language in the amendment. He noted that the very first sentence of Act 88 has a semicolon in it. That sentence states:

The boards of supervisors of the several counties may levy a special tax on the taxable property within their respective counties for the purpose of creating a fund; or appropriate out of the general fund an amount to be used for advertising agricultural or industrial advantages of the state or county or any part of the state, or for collecting, preparing or maintaining an exhibition of the products and industries of the county at any domestic or foreign exposition, for the purpose of encouraging immigration and increasing the trade in the products of Michigan, or advertising the state and any portion thereof for tourists and resorters.

As an English major, C. Smith said, his interpretation of a semicolon is to stop one thought, and append another thought to it – interrelated but separate. So for the Act 88 language, he said, there might be two legitimate interpretations of the function of that semicolon. It’s important for the board, which will be allocating the Act 88 dollars, “to have some degree of comfort that we’re doing it within the parameters of legality, even if those aren’t 100% clear,” he said.

Conan Smith (D-District 9).

The courts ultimately are responsible for interpreting the law, C. Smith said. If the board asked for a legal opinion and someone then sued the county over Act 88, the board would have a document that showed the legal underpinnings for their decision – and “I would feel more comfortable with the decisions that we are making.”

Act 88 is a mess, C. Smith continued – it’s “ancient” legislation that’s been amended over the decades, making it even more convoluted. “Just knowing that we’re walking down a path that is legal – even if we’re not sure that that is the absolute right path – I think would be helpful for us on the committee to make an allocation of the funds,” he said. “What I definitely don’t want to do is to walk down a path that’s not legal.”

D. Smith said he wants to make sure there’s a very full discussion of the law’s various nuances. At the end of the day, Hedger will provide his best interpretation of the law, he added. But as part of that guidance, it’s prudent to explore other ways that it could be interpreted. It should answer as many questions as can be answered, he said, “so that this issue is put to rest once and for all.”

Rabhi said it seemed like D. Smith was trying to do Hedger’s job. He thought they should ask the person that they hired to be the county’s attorney for his opinion. If the board wants a white paper on Act 88, they should ask for that – but maybe not from Hedger, he said. Rabhi asked Hedger what he thought.

Hedger replied that after this discussion, he had a better feel for what the amendment is asking for. He said D. Smith was right – when Hedger writes legal opinions for the board, he often describes other interpretations that he doesn’t necessarily agree with. He didn’t have a problem with this approach.

Alicia Ping (R-District 3) didn’t think the amendment accurately reflected what the board wanted from Hedger. C. Smith said he’d be comfortable striking the last clause: “…and that this opinion address in similar manner other possible interpretations.” D. Smith agreed to that change.

Rabhi thanked the Smiths, saying that striking the clause would allow him to support the amendment.

The revised amendment was as follows: [strike-through reflects a clause that was struck during deliberations]:

FURTHERMORE BE IT RESOLVED that the Washtenaw County Board of Commissioners directs Corporation Counsel to provide an exhaustive written opinion, by December 31, 2014, detailing the lawful uses of sums raised under Act 88 of 1913 (MCLA 46.161), and that this opinion address in similar manner other possible interpretations.

Outcome on the amendment, as revised: It passed unanimously on a voice vote.

Outcome on main resolution, as amended: The board unanimously passed the resolution allocating Act 88 funds, without additional discussion.

After the vote, Conan Smith commented that this was the first round of competitive Act 88 grants, and the projects are really interesting. “I think they’ll be very impactful on the community,” he said. He was especially excited about the grant to Growing Hope to study how to increase the use of food stamps at the Ypsilanti farmers market, so that people who use food stamps can get better access to fresh fruit and vegetables. He encouraged everyone in the community to take a close look at these projects.

Rolland Sizemore Jr. (D-District 5) expressed some frustration about the amount of money in general that’s being spent on studies, rather than directly on projects. He thought that the Ypsilanti farmers market project should be expanded to other parts of the county.

Act 88 Levy: Board Discussion

Later in the meeting, the board was asked to consider a separate resolution that would authorize the county to levy the Act 88 tax this year.

Dan Smith brought forward a similar amendment, aimed at getting a firm understanding of the Act 88 millage:

FURTHERMORE BE IT RESOLVED that the Washtenaw County Board of Commissioners directs Corporation Counsel to provide an exhaustive written opinion, by October 1, 2014, detailing the exact mechanism under which Act 88 of 1913 taxes may be levied in excess of Article IX, Section 6 constitutional limits without a vote of the people.

There was no discussion on the amendment.

Outcome on the amendment: It passed unanimously on a voice vote.

Outcome on the main resolution, as amended: It passed unanimously.

2nd Quarter Budget Update

The administration gave an update on the county’s second-quarter financial status, for the period from Jan. 1 through June 30, 2014. County administrator Verna McDaniel introduced the update by calling it “good news.” [.pdf of presentation]

Finance analyst Tina Gavalier.

Tina Gavalier of the county’s finance staff told commissioners that property tax revenue is showing a projected surplus of $720,000 compared to what was budgeted for 2014. In addition, the sheriff’s office is projecting a roughly $200,000 surplus due to federal, state and local reimbursements for prisoner boardings. In the category of general intergovernmental revenues, there’s now a projected surplus of $370,000 due to state liquor tax funds and local reimbursements for animal control.

Several other areas are showing a revenue shortfall, however, compared to the amount budgeted. Those units include the clerk/register of deeds ($350,000 shortfall), district court ($209,000 shortfall), trial court ($73,000 shortfall) and interest income ($71,000 shortfall).

Gavalier noted that the trial court is still determining the impact of a Michigan Supreme Court decision prohibiting the assessment of court costs on criminal cases. The court can collect on anything that was assessed prior to the court ruling, she explained, but if no legislative action is taken, courts could see a substantial decrease in future revenues.

Overall, the net projected revenues for the general fund show a revenue surplus of $656,991.

On the expenditure side, the sheriff’s office has a projected over-expenditure of $673,000 related to overtime costs, inmate food and medical services, and law enforcement operating supplies. Gavalier said the sheriff and his staff are actively working to reduce that over-expenditure by year’s end. All other departments are reporting a combined operating surplus of $135,000.

In other expenditure categories, the line item for tax appeals and refunds is projected to have a surplus of about $239,000. The line item of central charges has a projected surplus of $93,000 due to tax refund overpayments being less than budgeted – partially offset by projected over-expenditures from the homelessness initiative that the board approved earlier this year. Appropriations are assumed to be on budget at $16.2 million. The expenditure projections also took into account structural and non-structural budget adjustments that have been made so far in 2014, totaling $560,000.

The net projected over-expenditures for the general fund are $445,070. So the projected general fund surplus for 2014 is $211,920.

Washtenaw County general fund projections for 2014.

If that $211,920 is added to the fund balance at year’s end, Gavalier said, then the fund balance would be 20.3% of the general fund expenditures.

Most departments that aren’t part of the general fund are on budget or are projecting a surplus, Gavalier reported. Two areas – veterans relief and risk management – are using their fund balances as planned, she said.

Some revenue issues to monitor include: (1) state legislation that might repeal or reform Act 88, (2) revenues for the clerk/register of deeds office, (3) court revenues, (4) personal property tax reform, and (5) payments from state revenue-sharing. Expenditure items to monitor include rising costs in the child care fund due to increased caseloads and placements, the sheriff’s office costs, and union contract negotiations.

Gavalier noted that the board will receive a third-quarter update in November, with a budget reaffirmation process taking place this fall for the 2015-2017 budget.

2nd Quarter Budget Update: Board Discussion

Responding to a query from Yousef Rabhi (D-District 8), Tina Gavalier explained that the projected revenue shortfall of $350,000 in the clerk/register of deeds office was from lower-than-projected fees from document-processing – such as real estate transfers and marriage licenses. It’s lower than it’s been in the past several years. Rabhi quipped: “Buy houses and get married, everybody!”

County administrator Verna McDaniel.

Regarding the courts, Rabhi asked if there’s legislation pending to address the impact of the recent state Supreme Court ruling. He wondered if the county’s lobbyist needed to work on something in Lansing. [Washtenaw County and several other local municipalities pay Governmental Consultant Services Inc. to act as a lobbyist for their interests at the state level.]

County administrator Verna McDaniel said she hadn’t taken any action on this issue, but would be talking with the court administrators about it. She pointed out that the courts operate under a lump sum budget.

Rabhi said it might be worthwhile to see what other counties are facing, and to see if there’s potential to work across county lines. McDaniel said she’d get more information about that.

Dan Smith (R-District 2) wondered when the new GASB regulations take effect. He was concerned when the administration talks about a “surplus,” knowing that the county actually has about a huge amount of unfunded liability.

By way of background, Smith was referring to more than $200 million in unfunded liabilities from the retiree health care and pension funds. The new accounting changes – required by the Governmental Accounting Standards Board (GASB) – take effect in phases. In 2014, the main change will be more disclosures in notes to the financial statements, required by GASB 67. But in 2015, when GASB 68 is implemented, the county’s unfunded actuarial accrued pension liability will be booked as a liability in the county’s statement of net position, which will be a significant change, according to the county’s finance staff. New standards for health care liabilities will be addressed in the future by GASB, and the county’s accounting staff is working on that.

McDaniel replied that it’s an issue that staff will “continue to dialogue with this board about,” to get direction in terms of priorities and any additional actuarial payments that might be required.

Alicia Ping (R-District 3) asked about the shortfall for the courts, saying she was concerned about it. She wondered how that will impact the memorandum of understanding with the county, regarding the lump sum budget under which the courts operate. McDaniel noted that in the past, the courts have been able to work within their lump sum budget. But this year, the impact of the Supreme Court ruling will be substantial, she said. So the courts will have to come up with a plan about how they’ll handle it. The impact could be as much as a half million dollars, McDaniel said. “We’ll work with them, and we’ll have more information as this develops.”

Ping also asked for a breakdown in line-item costs that are contributing to the over-expenditures in the sheriff’s office budget. McDaniel said that the sheriff, Jerry Clayton, felt confident that expenses will even out over the remainder of 2014, based on actions that his office is taking.

Outcome: This was not a voting item.

2014 Budget Adjustments

Commissioners were asked to give final approval to mid-year budget adjustments, including allocating this year’s higher-than-expected property tax revenues and a $3.9 million surplus from 2013. Initial approval had been given at the board’s July 9 meeting.

The adjustments increased the general fund budget’s expenses and revenues by $720,486 for 2014, $733,233 for 2015, $745,980 for 2016 and $758,727 for 2017. The county operates on a four-year budget, with the fiscal year matching the calendar year.

The adjustments were recommended by county administrator Verna McDaniel, who requested setting aside the $3,920,818 surplus from 2013 in unearmarked reserves, rather than spending it. The projected year-end 2014 fund balance is $20,638,675. The county board had previously approved a goal of holding a fund balance equal to 20% of its general fund budget. For 2014, the general fund budget is $103,127,202. [.pdf of staff memo and mid-year budget resolution]

In addition, the following mid-year budget adjustments were made to the general fund:

• Structural adjustments resulting in a $494,677 increase in expenditures for: (1) providing employee health care coverage for autism; (2) a consultant to help with the board’s budget priority work, (3) a “local government initiatives” intern; (4) reinstatement of two full-time equivalent positions in the sheriff’s office; and (5) salary adjustments for non-union employees.
• Non-structural, one-time, adjustments that increased expenditures by $65,000 for homelessness initiatives.

The administration recommended that the remaining $160,809 be held as an undesignated allocation until budget projections improve as new information becomes available. Finance staff gave a second-quarter budget update on Aug. 6, projecting that the county will have a $211,920 general fund surplus at the end of 2014. [.pdf of budget presentation]

From left: County prosecuting attorney Brian Mackie and commissioner Dan Smith (R-District 2).

When an initial vote was taken on July 9, commissioners Dan Smith (R-District 2) and Conan Smith (D-District 9) had voted against it. On Aug. 6, both raised the same concerns they’ve voiced earlier.

Conan Smith said he hoped that when the county achieves its goal of a fund balance equal to 20% of the general fund budget, then any extra surplus would be “put to work in the community.” With its vote that night, the board will have achieved fiscal stability, he said, and he looked forward to achieving community stability as well.

Dan Smith stressed the importance of setting a budget and sticking to it, with adjustments coming only during the annual budget affirmation process – rather than throughout the year. There are other things to focus on, he said, including policy issues.

Yousef Rabhi (D-District 8) said he agreed with C. Smith. The board has done a lot to make sure the county’s financial security is in place. Looking forward, there are some investments that the county can make in the community. He thanked C. Smith for advocating on that issue.

Outcome: The budget adjustments passed unanimously.

Veterans Relief Tax

Commissioners were asked to give initial approval to levy a tax to support services for indigent veterans.

The county has determined that it is authorized to collect up to 1/10th of a mill without seeking voter approval. That’s because the state legislation that enables the county to levy this type of tax – the Veterans Relief Fund Act, Public Act 214 of 1899 – predates the state’s Headlee Amendment. The county first began levying this millage in 2008, and collects the tax in December. Services are administered through the county’s department of veterans affairs.

Since 2008, the county board has slightly increased the rate that it levies each year. In 2012, the rate was 0.0286 mills – or 1/35th of a mill. It was raised to a rate of 1/30th of a mill in December 2013, to fund services in 2014.

The current proposal is to levy 1/27th of a mill in December 2014, which is expected to raise about $540,887 in revenues for use in 2015.

There was no discussion of this item at the board’s Aug. 6 meeting.

Outcome: The board unanimously gave initial approval to levy this millage. A final vote is expected at the board’s Sept. 3 meeting.

New TIF Policy

Commissioners were asked to give initial approval a policy to guide the county’s participation in tax increment financing (TIF) authorities.

Commissioner Andy LaBarre (D-District 7) and county administrator Verna McDaniel.

At its Oct. 16, 2013 meeting, the board had passed a resolution directing county administrator Verna McDaniel to develop a policy for evaluating future TIF proposals. The resolution stated that the policy would be developed with input from staff of the office of community and economic development, the equalization department, and the brownfield redevelopment authority. The Oct. 16 resolution was passed over dissent by the board’s two Republican commissioners, Dan Smith (R-District 2) and Alicia Ping (R-District 3).

Subsequently, an advisory committee was formed to help develop the policy. Members were: county commissioner Andy LaBarre (D-District 7); county treasurer Catherine McClary; corporation counsel Curtis Hedger; and finance director Kelly Belknap.

The two-page policy brought forward by McDaniel lays out a process by which the board would consider any proposed or amended Corridor Improvement Authority (CIA) or Downtown Development Authority (DDA) where the capture of county tax revenues is requested. [.pdf of TIF policy]

New TIF Policy: Board Discussion

Dan Smith (R-District 2) referred to this section of the policy:

III. Tax Increment Financing Participation Process

Any local unit of government proposing a new or amended Corridor Improvement Authority or Downtown Development Authority, or other statutory entity empowered to capture, incremental County tax revenues are requested, shall adhere to the following review process, in addition to those specified by the appropriate state enabling legislation:

…

D. Any County participation in these Tax Increment Financing Districts shall be through the execution of a participation agreement. A participation agreement shall include, at a minimum, extent of County participation including estimated amount (consideration of dollar for dollar and percentage estimates), duration, and methods, if any, of termination and reporting requirements.

IV. County Opt Out Authorization

In the event a requesting entity fails to adhere to this process, the Washtenaw County Board of Commissioners authorize the County Administrator to take the appropriate steps to opt out of participation in the proposed tax increment financing plan.

It appeared to D. Smith that no additional board approval would be required, in order for the county administrator to begin opt-out proceedings if the requesting entity doesn’t follow the agreed-upon process. He didn’t object to that approach, but wanted to make certain that it’s what is intended.

Andy LaBarre (D-District 7) responded, saying that D. Smith’s interpretation was correct. Corporation counsel Curtis Hedger said the committee gave that authorization because of a potential timing issue. There are times when deadlines related to the TIF process would occur before the next board meeting, “so it gives the administrator some flexibility,” he said.

LaBarre said the policy is an attempt to give the board as broad a framework as possible. This is a tool the board could use, he said, but he also urged the board to look at each individual proposal in its set-up and its context. There are so many different types of tax-capture mechanisms for many different purposes, so he wanted to give that caveat. LaBarre praised the county staff for their work in developing this policy, saying “I simply went along for the ride.

Outcome: The TIF policy passed unanimously on an initial vote. A final vote is expected at the board’s next meeting, on Sept. 3.

Appointments

Yousef Rabhi (D-District 8), the board’s chair, made several nominations for appointments.

• Food Policy Council: Khadije Wallace to the slot for a citizen representative, for a term ending Dec. 31, 2014.
• River Raisin Watershed Council: Evan Pratt, the county’s water resources commissioner, as the Washtenaw County representative; and Harry Sheehan, environmental manager with the water resources commissioner’s office, as the county alternate. Those terms both end on Dec. 31, 2014.
• 2014 Remonumentation and Land Survey Peer Review Group: Thomas Sutherland, John Jekabson, Kevin Gingras, Patrick Hastings and Kenneth Coleman.

Outcome: All appointments were confirmed.

Water Resources: Revised Rules & Guidelines

The board’s Aug. 6 agenda included an item to support new rules and guidelines proposed by the county’s water resources commissioner, Evan Pratt. The changes relate to procedures and design criteria for stormwater management systems. [.pdf of revised rules and guidelines]

The previous rules and guidelines had been adopted in 2000. According to a staff memo, the new changes reflect updated requirements of the county’s National Pollutant Discharge Elimination System (NPDES) Phase II stormwater discharge permit, which is administered by the Michigan Department of Environmental Quality.

Pratt attended the Aug. 6 meeting, but there were no questions from commissioners and no discussion on this item.

Outcome: The resolution supporting the revised rules and guidelines was approved.

Communications & Commentary

During the Aug. 6 meeting there were multiple opportunities for communications from the administration and commissioners, as well as public commentary. In addition to issues reported earlier in this article, here are some other highlights.

Communications & Commentary: Proclamations – UA

At its July 9, 2014 meeting, the board had passed a proclamation welcoming the United Association (UA), a union of plumbers, pipefitters, sprinkler fitters, welders, and heating, ventilation, air conditioning and refrigeration (HVACR) technicians. They’ll be in this area from Aug. 9-15 for their 61st annual training program. For the past 25 years, that program has been held in Washtenaw County on the Washtenaw Community College campus, bringing about 2,400 participants to the county with an estimated economic impact of $5 million. [.pdf of UA proclamation]

Chris Haslinger, director of training for the United Association (UA) of plumbers and pipefitters.

At the Aug. 6 meeting, Chris Haslinger, director of training for the UA, was on hand to receive the proclamation. He thanked the board. He described the growth of the training program over the years, pointing out that this year there will be 450 first-time attendees. He noted that the community here welcomes the UA members, and that the union receives a great deal of assistance from the Ann Arbor and Ypsilanti convention and visitors bureaus. Both presidents of those bureaus – Mary Kerr and Debbie Locke Daniel – also attended the county board’s Aug. 6 meeting.

Halsinger reported that the UA had reached an agreement with WCC to extend the program here through 2028. There are eight people based in the Ann Arbor area who work year-round on UA training programs, he said. Eight people might not seem like a lot, he added, but it’s important that they live here and contribute to the community.

He described some other initiatives undertaken with WCC, and concluded by thanking the county, the city of Ann Arbor, Local 190 and Local 704. “We look forward to a future in the Ann Arbor community,” he said.

Board chair Yousef Rabhi (D-District 8) responded by thanking Halsinger and sharing an anecdote. He said he was on a conference call with U.S. vice president Joe Biden, discussing the future of the country’s talent and job resources. Rabhi said he asked Biden a question and mentioned the partnership between WCC, the county, the UA and other communities as an example of the direction that the country should be heading. He thanked Haslinger for UA’s investment in this community.

Communications & Commentary: Proclamations – Herb Ellis Sr.

Yousef Rabhi (D-District 8) read a proclamation honoring Herb Ellis Sr., the first black man to be elected to the Washtenaw County board of commissioners. Ellis was elected in 1968 and served until 1982, representing Ann Arbor. During that time he also was the first black chair of the county board. [.pdf of proclamation]

Jeff Ellis.

Ellis had passed away on July 10, 2014 at the age of 98.

Jeff Ellis, one of Ellis’ sons, was on hand to accept the proclamation. His father’s life was dedicated to serving others, either through education, civic organizations or as an elected official, he said. In particular, Ellis had been interested in public health issues, promoting educational opportunities for young people, and improving the lives of senior citizens.

Herb Ellis was a pioneer in the community, as one of the first black teachers in the Ann Arbor public school system, and the first person of color to be elected to the county board of commissioners. He was recognized as a consensus-builder, Jeff Ellis said. “He believed in leading by example, and did his best to be a positive role model in all aspects of his life. By most accounts, he was successful in that effort.”

Communications & Commentary: Proclamations – Donald Shelton

The board had a third proclamation – for 22nd circuit court judge Donald Shelton, who is retiring this year. [.pdf of proclamation for Shelton] Shelton was out of town and did not attend the Aug. 6 meeting. Yousef Rabhi reported that the proclamation would be given to Shelton at a retirement party later this year.

Communications & Commentary: Public Commentary

Thomas Partridge introduced himself as a recent candidate for political office in the state legislature and Ann Arbor city council. He called on the county to redouble its efforts after the Aug. 5 primary election to give priority to eliminating homelessness, generating adequate affordable housing, true countywide affordable and accessible public transportation, affordable health care and education. He supported Act 88 funding but didn’t think the grants reflected these priorities. Partridge advocated for support of Democrat Mark Schauer in his bid for governor, and for a progressive Democratic platform to address the needs of the most vulnerable residents. The state needs a balanced budget, but not one that’s balanced on the backs of those who are least able to fend for themselves in this economy.

Executive Session

At the end of the meeting, the board voted unanimously to go into executive session for the purpose of reviewing attorney-client privileged communication. It is one of the exemptions allowed under the Michigan Open Meetings Act. Commissioners retreated to a room in the administration’s offices, along with several staff members and others who had been invited into the closed session.

After about 30 minutes, three commissioners returned to the boardroom – Dan Smith (R-District 2), Alicia Ping (R-District 3) and Conan Smith (D-District 9). They indicated to The Chronicle that they thought the discussion in the closed session had strayed away from the limits imposed by the OMA, and they had left the session because of that. They did not state what the nature of the discussion had been, nor the topic of the session.

Soon after, the remainder of the board emerged from the closed session, and the meeting was adjourned.

Present: Andy LaBarre, Kent Martinez-Kratz, Alicia Ping, Yousef Rabhi, Rolland Sizemore Jr., Conan Smith, Dan Smith.

Absent: Felicia Brabec, Ronnie Peterson.

Next regular board meeting: Wednesday, Sept. 3, 2014 at 6:30 p.m. at the county administration building, 220 N. Main St. in Ann Arbor. The ways & means committee meets first, followed immediately by the regular board meeting. [Check Chronicle event listings to confirm date.] (Though the agenda states that the regular board meeting begins at 6:45 p.m., it usually starts much later – times vary depending on what’s on the agenda.) Public commentary is held at the beginning of each meeting, and no advance sign-up is required.

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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City administrator Steve Powers and Jane Lumm (Ward 2) just before the Nov. 18, 2013 council meeting started – a conversation Lumm wrote about after the meeting in an email thread to other councilmembers.

The special meeting will include a closed session – based on written attorney-client privileged communication and land acquisition. The land acquisition likely relates to the pending sale of the Edwards Brothers property on South State Street to the University of Michigan for $12.8 million, which was announced in a Nov. 27 press release. The business had signaled its intent to put the property on the market in late July.

A right of first refusal on the property is held by the city of Ann Arbor as a condition of a tax abatement granted by the city council almost three years ago, on Jan. 18, 2011. Purchase by the university would remove the property from the tax rolls. Washtenaw County records show the taxable value of the property at just over $3 million.

The closed session to be held on Dec. 9 follows some friction among councilmembers about the way information was shared with the council about the sale. That friction resulted from comments overheard by Jane Lumm (Ward 2) just before the council’s Nov. 18 meeting started, which prompted her to email her council colleagues expressing her dissatisfaction that not all councilmembers had been kept in the loop.

The email thread, provided to The Chronicle in response to a Freedom of Information Act request, goes on to include a query by Lumm to UM director of community relations Jim Kosteva for information about the status of the Edwards Brothers property, followed by an admonishment to Lumm from Christopher Taylor (Ward 3) that there were scenarios under which Lumm’s inquiry could potentially be detrimental to the city’s interest. The thread includes a note from Chuck Warpehoski (Ward 5) that indicates concern that the issue should appropriately be discussed in a closed session under the state’s Open Meetings Act, not in an email thread among all councilmembers.

The email thread includes a clarificational inquiry to Taylor from Jack Eaton (Ward 4), as well as a note from Sabra Briere (Ward 1) about news coverage of the Edwards Brothers property sale. Eaton, Briere and Lumm signed the call to the Dec. 9 special meeting, which any three councilmembers can do under the city charter.

After the special meeting and its closed session, the council will move to the jury assembly room at the adjoining Justice Center for its annual budget planning session. That session could include an airing out of the issue of shared information – under an agenda item labeled “Articulating Mutual Expectations.” More specifically, the item indicates that the council will “identify and discuss mutual expectations for governing together” with the following desired outcome: “Articulate and agree on mutual expectations for members of the governing body.”

The background materials that have been provided to the council in preparation for the planning session include draft copies of reports with results from the National Citizens Survey that was conducted in the fall of 2013 by mailing a questionnaire to a random sample of 3,000 city residents, 778 of whom completed surveys. [.pdf of draft Ann Arbor National Citizens Survey report] [.pdf of responses, benchmarks, methodology and questionnaire]

The survey covered a broad range of topics. For example, 55% of survey respondents indicated that they rely at least somewhat for their news and information on online newspapers and media. That compares to 37% who said they rely some for news on printed newspapers. More respondents than that said they rely on news from the city website specifically (44%) or on radio stations (41%).

But questions about public safety – one of the top three priorities identified at last year’s planning session – will likely be of greater interest for councilmembers who will be weighing budget decisions at this year’s session. In general, under the community characteristics portion of the survey, 89% of Ann Arbor survey respondents rated their overall feeling of safety as good or excellent, with ratings for neighborhood safety at 97% and for downtown/commercial area safety at 92%. Those numbers are similar to the set of benchmarked communities that participated in the survey. The council’s measure of success for public safety includes the idea that residents should perceive the community as safe.

For the open-ended response survey item, which asked respondents to identify the city leaders’ top three priorities to maximize the quality of life in Ann Arbor, public safety was one of the top three items, with 19% of the open-ended responses identifying safety, crime and police as a concern. Also cited in 19% of responses were government, taxes and communication. However, the dominant concern in the open-ended responses was mobility issues – as 57% of responses were coded as related to roads, transportation, traffic, traffic enforcement, bikes and pedestrians.

That survey result mirrors the wide participation by the community in the recent debate about the repeal of the city’s crosswalk law. That debate ended in a city council vote on Dec. 2, 2013 to modify significantly the existing ordinance. But mayor John Hieftje announced immediately following the vote that he intended to exercise his power of veto.

The priority placed on the topic by the public and by councilmembers will also be reflected in two anticipated agenda items for the council’s Dec. 16 meeting. Christopher Taylor (Ward 3) is expected to bring forward a resolution directing the city administrator to present a plan for funding elements of the recently adopted update to the city’s non-motorized transportation plan. And Stephen Kunselman (Ward 3) has told The Chronicle he expects to bring forward a resolution on Dec. 16 that would allocate $500,000 from the general fund reserve this year to pay for police overtime to conduct traffic enforcement.

How police officers use their time while on duty is part of a report the council has been provided in preparation for the Dec. 9 budget planning session. Initial results from a newly implemented (Jan. 1, 2013) electronic timesheet logging system appear to indicate that police officers have at least 40% of their time that’s either unassigned or dedicated to proactive policing and community engagement. At last year’s planning session, the council had defined a success statement for public safety that included a goal of 25-30% time available for proactive policing.

The sequence of a special city council meeting followed by the budget planning session was also played out last year in mid-December. That’s when the council convened a special meeting to take a vote protesting the establishment of the southeast Michigan Regional Transit Authority. Like last year, the council’s budget planning session will be led by Julia Novak of the Novak Consulting Group.

Material presented in this article includes an annotated email thread about the Edwards Brothers property sale – which started in the Nov. 19 early morning hours, after the council meeting ended.

Annotated Email Thread

Chronicle annotations below are indicated in bracketed italics.

From: Lumm, Jane
Sent: Tuesday, November 19, 2013 3:40 AM
[The council meeting that started on Nov. 18, 2013 did not conclude until 1:45 a.m.]
To: Powers, Steve
CC: Hieftje, John; Kailasapathy, Sumi; Briere, Sabra; Petersen, Sally; Taylor, Christopher (Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: Edwards Brothers’ Property on State Street

Dear Steve,

This evening I tangentially and inadvertently became aware of a proposal that has been offered by the UM for the Edwards Brothers’ property. I’ll be perfectly honest, I overheard Mayor Hieftje share this news with Councilmember Petersen, and hence my inquiry. In the interest of providing all councilmembers with helpful information regarding this development, could you please share what you know about this matter with all of council? Please also provide your counsel on options that we may consider (timing, proposals, strategy, etc.) given the City’s right of first refusal position. 

[The Edwards Brothers press release issued on Nov. 27 named Sally Petersen (Ward 2) as a councilmember with whom Edwards Brothers leadership had met that same day – along with mayor John Hieftje. Petersen responded to an emailed Chronicle query about the rationale for her inclusion in the talks. Petersen gave two reasons: "1. The Mayor knows that I am interested in forging an improved town-gown relationship with U of M, their offer for the Edwards property, despite previous denial of affirmative interest, signals a step back in relationship building. 2. John and Susan Edwards used to live across the street from us on Devonshire and our daughters were best friends when they were at Angell Elementary. Joe and Sue Upton are friends from Church. It was natural for me to be involved from a personal relationship perspective."]

I sense that, if what I overheard is accurate, and I very much regret that this is how I was “informed”, we obviously do not all have the benefit of being provided the information necessary to adequately contemplate and respond to any strategy you may recommend or seek input on developing.

Thank you for assisting us in understanding our options, and for extending us all the courtesy of receiving this information in a timely, helpful, meaningful and equitable way. Aside from this specific request, I think my request for the equitable dissemination of information is so fundamental, so obviously the right and proper thing to do. We’re all just trying to do our jobs, and, obviously, in order to do that, information must be provided all councilmembers.

Jane

Sent from my iPhone

From: Briere, Sabra
Sent: Tuesday, November 19, 2013 7:38 AM
To: Lumm, Jane; Powers, Steve
CC: Hieftje, John; Kailasapathy, Sumi; Petersen, Sally; Taylor, Christopher (Council); Kunselman,
Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: RE: Edwards Brothers’ Property on State Street

Dear colleagues,

Of course, I didn’t overhear the conversation between Mayor Hieftje and Council member Petersen. But this article identifies the City’s right of first refusal and the UM’s desire to expand the athletic campus: http://www.mlive.com/business/ann-arbor/index.ssf/2013/11/city_of_ann_arbor_has_first_cl.html

Sabra Briere
First Ward Councilmember
(734) 995-3518 (home)
(734) 277-6578 (cell)

Emails received and sent to me as a Councilmember regarding City matters are generally subject to disclosure under the Freedom of Information Act.

From: Lumm, Jane
Sent: Tuesday, November 19, 2013 8:26 AM
To: Briere, Sabra
CC: Powers, Steve; Hieftje, John; Kailasapathy, Sumi; Petersen, Sally; Taylor, Christopher
(Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: Re: Edwards Brothers’ Property on State Street

Sabra,

I saw this article. Please note what the Mayor states, WE will need to have a serious conversation. I’ve come to appreciate, sadly, after getting my news from news sources rather than the City (this has occurred frequently, on important matters!, since I’ve been on council), that information is not shared or disseminated even-handedly or fairly, and last night’s discovery was another unfortunate case in point.

After John’s aside to Sally sunk in, the magnitude, the significance, the way in which this was shared … , I asked Steve Powers if and what he knew about this. Had less than a minute b/c the mtg. was about to start. In that brief exchange, Steve confirmed, the UM made an offer, and seemed to imply (reading his “body language”) it wasn’t a positive development. I said this was a big deal, and would have said more, much more, but the council mtg. was now about to start. Council members should be treated even-handedly, and information should be provided ALL. I have made this request on innumerable occasions.

[When asked by The Chronicle for an example of another occasion on which she did not perceive that information was shared even-handedly, Lumm cited the news that the University of Michigan had ended its participation in the now demised Fuller Road Station project.]

Jane

Sent from my iPhone

From: Briere, Sabra
Sent: Tuesday, November 19, 2013 8:29 AM
To: Lumm, Jane
CC: Powers, Steve; Hieftje, John; Kailasapathy, Sumi; Petersen, Sally; Taylor, Christopher (Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: Re: Edwards Brothers’ Property on State Street

Thank you for the clarification, Jane.

I guess, reading between the lines in the media coverage, that I had assumed the UM made a bid for the property. So that doesn’t seem like new information. I want to hear more about the City’s options.

Sabra Briere
First Ward City Council
Ann Arbor
734-995-3518
734-277-6578 (cell)

Sent from my iPad

From: Lumm, Jane
Sent: Tuesday, November 19, 2013 8:52 AM
To: Briere, Sabra
CC: Powers, Steve; Hieftje, John; Kailasapathy, Sumi; Petersen, Sally; Taylor, Christopher (Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski. Chuck; Anglin, Mike
Subject: Re: Edwards Brothers’ Property on State Street

The article was speculative, and how I learned, when the reporter called to ask me about this, the City had a right of first refusal. Nothing in the article about the UM making an offer. Perhaps, prior to my note, you were made aware of this as well? It should be clear, I am advocating on EVERYONE’S behalf. Not shouting, emphasizing so it’s understood why I think this is so important, speaks more about us, how we should treat our colleagues. Pretty basic, pretty essential, decent, common courtesy.

Jane

Sent from my iPhone

From: Powers, Steve
Sent: Tuesday, November 19, 2013 9:52 AM
To: Lumm, Jane
CC: Hieftje, John; Kailasapathy, Sumi; Briere, Sabra; Petersen, Sally; Taylor, Christopher
(Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: RE: Edwards Brothers’ Property on State Street

The tax abatement agreement between City Council and Edwards Brothers gives the City (City Council) 60 days to exercise its right of first refusal. The 60 days is triggered by a formal notification from Edwards Brothers. No such notice has been received by the City. The property is surrounded on three sides by the UM Athletic Department. The UM Athletic Department has acquisition of the property included in its master development plan. The University recently received a $100 million dollar donation for the Stephen Ross Athletic Department. I don’t know if the University has made an offer or not, but I assume they will.

SP

From: Lumm, Jane
Sent: Tuesday, November 19,2013 10:21 AM
To: Powers, Steve
CC: Hieftje, John; Kailasapathy, Sumi; Briere, Sabra; Petersen, Sally; Taylor, Christopher (Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: Re: Edwards Brothers’ Property on State Street

Steve, last night you told me that they did make an offer. Sally confirmed that John told her the UM made an offer.

[It's possible that the apparent miscommunication here is a function of the fact that the University and Edwards Brothers had agreed to terms, but that the event triggering the city's 60-day right-of-first refusal window had not (and as far as The Chronicle's understanding goes, still has not) taken place. According to the tax abatement agreement, that event is a formal notification of Edwards Brothers to the city.]

Just the facts.

-Jane

Sent from my iPhone

From: Lumm, Jane
Sent: Tuesday, November 19, 2013 10:34 AM
To: Kosteva, Jim
CC: Powers, Steve; Hieftje, John; Kailasapathy, Sumi; Briere, Sabra; Petersen, Sally; Taylor, Christopher (Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: UM Offer for Edwards Brothers Property

Jim, Last evening Mayor Hieftje shared with one of our councilmembers that the UM has made an offer to Edwards Brothers for the State Street property. I don’t know how Mayor Hieftje received this information or from whom, but any enlightenment on the University’s part would be welcome. The City apparently has, as stipulated in the right of first refusal provision, 60 days to respond, and the City Administrator indicates he is unaware of an offer and no notice has been received. Yet, the speculation, prompted by the Mayor’s “announcement” is heightened given the potential and significant impact on the City were such an offer to be presented. Any information you can provide in this regard would be welcome.

Thank you, Jane

Sent from my iPhone

From: Taylor, Christopher (Council)
Sent: Tue 11/19/2013 10:50 AM
To: Lumm, Jane
CC: Powers, Steve; Hieftje, John; Kailasapathy, Sumi; Briere, Sabra; Petersen, Sally; Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: RE: UM Offer for Edwards Brothers Property

Jane,

Without myself having any personal knowledge of the situation, there are several reasonable scenarios under which this communication would be substantially detrimental to the best interest of the City. 

[Subsequent inquiry and response by Taylor indicates that by "this communication" Taylor meant Lumm's inquiry of Kosteva.]

Christopher

Christopher Taylor Member Ann Arbor City Council (Third Ward)

734-834-3600 (c) [New Number]
734-531-1331 (w) [New Number]
734-213-6223 (h)
Like me on Facebook at: http://tinyurl.com/a2jsvpa <http://tinyurl.com/a2jsvpa>

From: Eaton, Jack
Sent: Tuesday, November 19, 2013 2:21 PM
To: Taylor, Christopher (Council); Lumm, Jane
CC: Powers, Steve; Hieftje, John; Kailasapathy, Sumi; Briere, Sabra; Petersen, Sally; Kunselman,
Stephen; Teall, Margie; Warpehoski, Chuck; Anglin, Mike
Subject: RE: UM Offer for Edwards Brothers Property

Christopher,

Being the new member on Council I want to be very careful not to harm the best interests of the City. Hopefully I can learn from the actions of others. So, please indulge my desire to understand the caution you are trying to communicate to CM Lumm.

When you say “there are several reasonable scenarios under which this communication would be substantially detrimental to the best interest of the City”, what do you mean by the use of the terms “this communication”. Do you mean:

(1) the communication between the Mayor and the unidentified third person;
(2) the communication from Ms. Lumm disclosing that overheard conversation to other members of Council;
(3) CM Lumm’s email inquiry to Kosteva asking about the status of the property;
(4) something else?

Thanks in advance,

Jack

On Nov 19, 2013, at 2:31 PM, “Taylor, Christopher (Council)” <CTaylor@a2gov.org> wrote:

Hi Jack,

Thanks for asking: #3.

Christopher Taylor Member Ann Arbor City Council (Third Ward)

734-834-3600 (c) [New Number]
734-531-1331 (w) [New Number]
734-213-6223 (h)

Like me on Facebook at: http://tinyurl.com/a2jsvpa

From: Warpehoski, Chuck
Sent: Wednesday, November 20, 2013 10:43 AM
To: Lumm, Jane
CC: Powers, Steve; Hieftje, John; Kailasapathy, Sumi; Briere, Sabra; Petersen, Sally; Taylor, Christopher (Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Anglin, Mike; Postema, Stephen
Subject: Re: Edwards Brothers’ Property on State Street

Two points:

1. I believe that consideration of this particular issues should best be taken under closed section “To consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained.” I do not believe this should be addressed through email.

2. Also related to OMA, I am concerned about deliberations not be conducted outside of public view, so I ask that colleagues take care with emails to all and reply all messages.

[The point that Warpehoski is making is that if at least a quorum of councilmembers were to engage in deliberative back-and-forth which purpose was ultimately to effect public policy, then this would constitute a "meeting" under Michigan's Open Meetings Act. That would be a violation of the OMA, because it's difficult to imagine how an email conversation could be noticed to the public or be made accessible to the public.]

-Chuck

Chuck Warpehoski
Ann Arbor City Council, Ward 5
cwarpehoski@a2gov.org
c: 734-972-8304

Visit www.chuckwarpehoski.org for Ward 5 updates and to sign up for a Ward 5 email newsletter. Emails received and sent to me as a Councilmember regarding City matters are generally subject to disclosure under the Freedom of Information Act.

From: Lumm, Jane
Sent: Friday, November 22, 2013 2:14 PM
To: Taylor, Christopher (Council); Eaton, Jack
CC: Postema, Stephen; Powers, Steve
Subject: Re: UM Offer for Edwards Brothers Property

Christopher and Jack, Thanks. Heeding your admonition, after I sent the inquiry to Kosteva, obviously, and wondering why this poses a problem to ask the University for clarification. Honestly don’t know why it’s detrimental since the City has a potential interest.

[On the question of what Taylor had in mind when he described "several reasonable scenarios under which this communication would be substantially detrimental to the best interest of the City" Taylor answered an emailed query from The Chronicle by indicating he would decline to respond. The Chronicle followed up by asking if Taylor's reason for not wishing to comment was based on the idea that explaining the kind of scenario he had in mind would itself increase the likelihood of having a scenario unfold that was detrimental to the city. Taylor indicated that was not the reason. Instead he indicated that he was declining to comment out of "comity." ]

Think there needs to be a council mtg. to discuss. This all seems to be unfolding quickly.

Thanks, Jane

Sent from my iPad

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This revision to the set of council rules was first presented to the council on June 17, 2013. However, a vote was postponed at that meeting.

The revisions were prompted by a desire to allow for public commentary at council work sessions – to eliminate any question about whether councilmembers were engaged in deliberative interactions at those sessions. By allowing for public commentary at work sessions, the council would ensure compliance with Michigan’s Open Meetings Act. The council’s rules committee also recommended additional changes, including a shortening of the individual speaking turns for public comment as well as shortening of time for councilmembers. Those additional changes were included in the June 17 version of the rules.

After again postponing a vote at its July 1, 2013 meeting, the council used its following meeting, on July 15, 2013, to eliminate one of the proposed rule changes – the shortening of public speaking turns. But the council postponed further revisions and a vote until Sept. 3. The council’s rules committee – consisting of Marcia Higgins (Ward 4), Sabra Briere (Ward 1), Stephen Kunselman (Ward 3), Christopher Taylor (Ward 3), and mayor John Hieftje – was supposed to meet before the Sept. 3 meeting to consolidate input from other councilmembers and perhaps present a clean slate of proposed revisions. However, in the interim, the rules committee did not meet.

Among the other changes that had been a part of the proposed revisions, but which were postponed until the Sept. 16 meeting, was the addition of a rule to disallow the use of mobile electronic communication devices at the council table. Another possible change would affect the council’s standard agenda template by moving nominations and appointments to boards and commissions to a slot earlier in the meeting, instead of near the end.

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

From left: Ann Arbor District Library trustee Jan Barney Newman and AADL director Josie Parker. (Photos by the writer.)

The $112,150 contract with Merit Network, a nonprofit based in Ann Arbor, would put the Pittsfield branch on par with high-speed connections throughout the rest of the AADL system. The branch had been described to the board as a “bandwidth backwater,” with about 2% of the Internet connectivity speed compared to other AADL locations. The project will be paid for with money from the library’s fund balance.

In other action, the board approved final budget adjustments for the fiscal year ending June 30 – a routine procedure.

In her director’s report, Josie Parker highlighted the launch of the library’s popular summer reading game, and announced that Ann Arbor/Ypsilanti Reads is soliciting suggestions for its 2014 selection – a work of fiction. The theme is “A Very Good Read.”

During public commentary, Doug Jewett focused his remarks on the Michigan Open Meetings Act, especially as it relates to committee meetings. Bob Rorke discussed the results of a Freedom of Information Act request filed by the Protect Our Libraries political action committee, related to the AADL’s hiring of Allerton-Hill Consulting. Reading through the 634 pages of material the library had produced in response to the FOIA request had raised some concerns for Rorke, including questions about whether the library was using public monies for political purposes.

Pittsfield Fiber-Optic Project

In its main action item, the board was asked to approve a $112,150 contract with Merit Network to build and maintain a connection from AADL’s Pittsfield branch to Merit’s existing high-speed network. Merit, a nonprofit based in Ann Arbor, has focused on serving the state’s educational market since the 1960s.

The board had been briefed at its May 6, 2013 meeting by Eli Neiburger, AADL’s associate director of IT and production. He had described that location at 2359 Oak Valley Drive as a “bandwidth backwater,” with about 2% of the Internet connectivity speed compared to other AADL locations.

Merit currently provides AADL’s main connection to the Internet. The Pittsfield branch is outside of the city of Ann Arbor’s I-Net (Institutional Fiber Network) and currently uses much slower T1 and cable TV connections. Merit had proposed building a new fiber run from the Washtenaw Intermediate School District (WISD) on Wagner Road over to Pittsfield.

The resolution proposed on June 17 included a transfer of $120,000 from the library’s fund balance to its communications line item in the FY 2013-14 budget. The board had passed its FY 2013-14 budget on May 6, for the fiscal year starting July 1, 2013. The arrangement with Merit is expected to include ongoing annual costs of $2,625.

Pittsfield Fiber-Optic Project: Board Discussion

Margaret Leary began the discussion by saying she’d read a comment online from someone who said he uses the Pittsfield branch and had never experienced any problem with the Internet service there.

AADL trustees Ed Surovell and Prue Rosenthal, who serves as president of the board.

Leary recalled that Neiburger had been “quite convincing” in explaining the need for this upgrade. [He did not attend the June 17 meeting.] She speculated that not all users would likely have a problem all the time. “We’re just trying to make it so good so that nobody – no matter how heavy their use or how big the file that they’re downloading – will ever have a problem,” Leary said.

AADL director Josie Parker confirmed that not everyone would experience problems, but many people do. That branch simply doesn’t have the capacity, she said. It depends on the time of day and other factors, she added, saying it’s “much, much slower than the rest of the system.” Barbara Murphy made an analogy to a pipe – “there’s only so much you can run through it.”

Ed Surovell wondered whether the library could fund this project from the surplus remaining at the end of the current fiscal year, rather than from the fund balance. Parker clarified that the contract will be paid in the next fiscal year, not the current one. The current fiscal year ends on June 30, 2013.

Parker also explained that the difference between the $120,000 fund transfer and the $112,150 contract will be used to pay for “make ready” costs, such as digging up the existing line and getting it ready for the new connection.

Outcome: The board unanimously approved the contract with Merit Network.

FY 2012-13 Budget Adjustment

The board was asked to approve minor year-end adjustments to the budget for fiscal year 2012-13, which ends June 30. This is a standard action at the end of the fiscal year.

The adjustments entailed making the following transfers:

• $18,000 from capital outlays to the supplies line item.
• $15,000 from capital outlays to the utilities line item.
• $12,000 from repairs & maintenance to the communications line item.
• $4,000 from repairs & maintenance to the line item for other operating expenditures.
• $10,000 from the fund balance/restricted funds to the programming line item.

There was minimal discussion. Nancy Kaplan, chair of the board’s budget and finance committee, pointed out that this is a typical practice at the end of each year. She said she had checked with Ken Nieman, AADL’s associate director of finance, who had explained to her that because the library has a line-item budget, these transfers need to be made in order to comply with state law. It’s for the fiscal year that’s concluding on June 30, not the coming year, she said.

Outcome: The board unanimously approved the FY 2012-13 year-end budget adjustments.

Financial Reports

AADL director Josie Parker presented the financial reports for April and May, in the absence of Ken Nieman, AADL’s associate director of finance, HR and operations. [.pdf of April 2013 financial statement] [.pdf of May 2013 financial statement]

Parker focused her brief presentation on the most current financial statements, for the period ending May 31. As of May 31, 2013 the library’s unrestricted cash balance was $8.775 million, down from $9.91 million at the end of April. The fund balance stood at $8.363 million as of May 31. The library had received 98.5% of its budgeted tax revenues for the year, or $11.038 million. At the end of May, there was an operating surplus of $417,846.

Committee Reports

The board has six committees: communications, budget and finance, facilities, policy, director’s evaluation and executive. Two of those – communications and facilities – were created as special committees at the board’s Jan. 21, 2013 meeting.

Most of the committees had not met since the last board meeting, and there was nothing to report.

The one exception was the policy committee. Barbara Murphy noted that the policy committee had met earlier this month and talked about the role of the committee in relation to the library and policy management. The library staff is reviewing AADL’s policy manual, she said, looking for anything that needs updating. The staff will bring that to the policy committee later this year, Murphy said.

Director’s Report

AADL director Josie Parker began by noting that the library’s summer reading program kicked off. This year, the theme is dogs. The program is cast in the form of a game, with points awarded for reading/listening to books, watching movies, posting reviews on the library’s website, and other activities. She encouraged board members to play, and asked others at the meeting if any of them were on the leader board – about half the people in the room raised their hands.

Some of the badges that can be earned by playing the Ann Arbor District Library summer reading game.

From the audience, Donald Harrison asked if a game code would be given for people who attended the board meeting. [Points are awarded for attending an AADL event – including board meetings. At the event, a code is announced that allows you to redeem the points.] Parker laughed, and said the staff could create a code for the meeting. It was announced before adjournment.

For additional background on AADL’s summer game, see Chronicle coverage: “AADL Gets Its Game On.”

Parker also reported on AADL’s new short story contest for grades 3-5, which recently concluded. There were 99 entries from a wide range of schools, including the Michigan Islamic Academy, several Ann Arbor Public Schools elementary schools, Ann Arbor Learning Community, Honey Creek Community School, Heritage School in Saline, Ann Arbor Christian, and home-schooled students. An awards ceremony in early June featured Shutta Crum, a local author and former AADL librarian.

Trustee Barbara Murphy asked if the board could see some of the stories that were submitted. “They’re so young. I’d love to know what kind of stories they write,” she said. Parker quipped: “Short ones – very short ones.”

Parker also recognized Terry Soave, AADL’s manager of outreach and neighborhood services, for her work setting up an online repository for documents that can be used by all libraries for the blind and physically handicapped nationally. Parker read aloud a resolution from the Northern Conference of Libraries for the Blind and Physically Handicapped, specifically commending the Washtenaw Library for the Blind and Physically Disabled, which is managed by the AADL. Parker noted that the AADL has been responsible for the WLBPD for less than five years. Soave has led the effort and should be congratulated publicly, Parker said. The board gave Soave a round of applause.

Finally, Parker noted that Ann Arbor/Ypsilanti Reads has changed its focus a bit and is going to select a work of fiction for 2014. The previous selections have been non-fiction. The theme for 2014 is “A Very Good Read.” Parker encouraged anyone who has a suggestion to submit it to the AAYR selection committee.

Communications & Commentary

The board meetings have two opportunities for public commentary – at the beginning and end of each meeting – as well as time for various communications from the board. Here are some highlights.

Communications & Commentary: Public Commentary

Doug Jewett addressed the board about the Michigan Open Meetings Act. He read from material that had been prepared by Ellen Richardson, a former law library specialist for the Library of Michigan. The materials were directed specifically for the trustees of local library boards, he said. Jewett read excerpts from a document dated July 1999:

Most library boards are well versed in meeting these basic requirements. Trustees know what constitutes a quorum, how to allow for public comment, and how and when to post notice of regular and special meetings. Questions usually arise about some of the finer points of the act. What about closed sessions? What about committee meetings?

Closed sessions are allowed only for the limited purposes stated in Section 8 of the act. Library trustees who have served on boards in the private sector are often surprised at how limiting the exceptions are, especially in regard to personnel issues. Unless the person subject to an evaluation, a disciplinary action, or complaints, asks for a closed session, such matters must be handled in a public meeting. It often takes a great deal of discipline and tact to address these issues in a respectful yet effective way under the glare of public scrutiny. The act also outlines the procedures that must be followed before the board may go into closed session. This is not an easy area of the law. Trustees should make it a practice to consult legal counsel before a closed session is held.

Do committee meetings need to follow the requirements of the Open Meetings Act? It has long been established that library board committees and subcommittees which include a quorum of library board members must comply with the act. What if there is less than a quorum of board members on the committee? Board committees, such as a budget committee, are usually charged with a specific duty and delegated the authority to carry out that duty. Deliberations and decisions are made in the committee meetings which will lead toward the final decision-making by the full board. Recent Michigan Supreme Court decisions indicate that it is probably wise to make sure that all such committee meetings are open to the public.

Trustee Jan Barney Newman asked Jewett if Richardson’s advice applied to all committee meetings, or just the budget committee. He replied that he didn’t think it was Richardson’s intent to single out only budget committee meetings, but he couldn’t speak for her beyond what she had written. [By way of background, the AADL board's committees consist of less than a quorum of board members, and are not open to the public. In the past board members have defended that approach, saying that no decisions are made during those meetings, just recommendations that are brought to the full board.]

Members of the public at the June 17, 2013 Ann Arbor District library board meeting. From left: Donald Harrison, Shoshana Hurand, Lyn Davidge and Irene Dernberger.

Bob Rorke talked about the AADL’s decision to hire Allerton-Hill Consulting, which had been announced at the board’s March 18, 2013 meeting. The firm had been hired to conduct a communications audit for $28,000. A few weeks ago, Rorke said, the Protect Our Libraries political action committee had filed a Freedom of Information Act request for documents related to the contract. After reading through the 634 pages – which he said he did twice – Rorke was somewhat concerned and had several questions. [Documents related to the FOIA response are posted online at the Ann Arbor Area Government Document Repository.]

Rorke referred to the first two objectives listed in the Allerton-Hill proposal. The first objective is to provide high-quality research on voter attitudes on the library. Rorke noted that the reference is to voter attitudes, not patron attitudes. The second objective is to offer high-quality long-term messaging so that the AADL is successful in its public initiatives. He assumed that public initiatives referred to ballot proposals and possibly bond proposals. “Clearly, Allerton-Hill is a political consultant doing political work for a political campaign,” Rorke said – that’s their business. It raises a concern about using public monies for these purposes, he said, and whether it’s legal under Michigan law.

Rorke referred to his experience as a former Ann Arbor Public Schools board member, saying that they had well-defined constraints on spending for political purposes. They were limited to talking about facts, and not doing anything in terms of advocacy. “So my question tonight is where do we stand on this particular contract,” he said. Rorke also wondered if the contract was awarded through a competitive bid, and in particular whether any Michigan firms had been considered. [Allerton-Hill is based Columbus, Ohio.]

The board did not respond to Rorke’s questions during the meeting.

Lyn Davidge told board members that it’s an excellent idea to hold the meetings in various AADL branches, at least for the summer months. However, she hoped that in the future there were be microphones for the board members to use – it had been very difficult to hear what they were saying, “and I have passable hearing,” she said. She had never been to the Traverwood branch, Davidge said, but she’d attended other types of meetings at other branches and microphones were used. It would be helpful to use them, she said.

Don Salberg welcomed the board to his neighborhood, saying that he lived about three blocks from the Traverwood branch and thought it was nice that they were using the facility for their board meeting. Now that the bond referendum for a new downtown library had been defeated, he felt it was time to pay attention to maintenance and upgrades that had been considered for the existing downtown library prior to the November 2012 referendum. Specifically, he suggested increasing power outlets, citing the trend of patrons who are bringing laptop computers and smartphones that need to be charged. The library should also consider upgrades to the heating and cooling systems, as well as the lighting. All of these upgrades would likely cost less than 1% of the library’s reserve fund, he said, and should therefore be affordable.

Communications & Commentary: Board Communications

Board president Prue Rosenthal responded to public commentary that Don Salberg had given at the board’s May 6, 2013 meeting. She cited Salberg’s statement that when Luckenbach|Ziegelman Architects was hired by the library several years ago to develop schematics for a new downtown building, the architects had stated that very few people were coming to the library to do research because they were primarily using the Internet to do that work.

Rosenthal said she went back and reviewed the information that Luckenbach|Ziegelman Architects had provided to AADL, “and I found nothing that said anything like that.” She read from the architects’ proposal: “The incredible wealth of information available on the Internet and its World Wide Web, the speed and accuracy of search like Google, have made the Internet the platform of preference for reference materials.” It goes on to discuss the patrons who can or can not access that information, she said. Rosenthal stated that she wanted to set the record straight.

Near the end of the meeting, Nancy Kaplan, who chairs the board’s communications committee, wondered what members of the public felt about the board’s decision to hold its meeting at Traverwood. She noted that the board intends to hold meetings at other branches, and it would be nice to have some feedback. The July 15 meeting will be at the Pittsfield branch. Margaret Leary suggested that people could give their feedback via the AADL’s website.

Jan Barney Newman encouraged others to check out the digital library services at University of Michigan. [She was referring to the Digital Media Commons at the Duderstadt Center on north campus.] The experience is exhilarating, she said, “and it’s an extension of what libraries can offer.” She said Rob Pettigrew had led a tour, which included a 3-D computer lab, sound lab and video lab.

Present: Nancy Kaplan, Margaret Leary, Barbara Murphy, Jan Barney Newman, Prue Rosenthal, Ed Surovell. Also AADL director Josie Parker.

Absent: Rebecca Head.

Next meeting: Monday, July 15, 2013 at 7 p.m. at the Pittsfield branch, 2359 Oak Valley Dr. [Check Chronicle event listing to confirm date]

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Washtenaw County commissioner Dan Smith (R-District 2) talks with residents who attended the county board’s May 1 meeting to highlight the deteriorating condition of North Territorial Road, which runs through Smith’s district. (Photos by the writer.)

The May 16 retreat is set for the county’s Learning Resource Center at 4135 Washtenaw Ave. – near the county jail complex – starting at 6 p.m. The meeting is open to the public and will be videotaped.

Peterson also questioned the content of the retreat. “If it’s a hug fest,” he said, “I don’t have to be there.” Board chair Yousef Rabhi told commissioners that the goal will be to set priorities for the upcoming budget. “It’s going to be work,” Rabhi said. “There aren’t going to be any hugs, unless somebody wants to give me a hug.”

Also at the May 1 meeting, the board gave final approval to authorize the development of a four-year budget planning cycle, a change from the current two-year cycle that’s been in place since 1994. The vote was 7-2 vote, with dissent from Peterson and Rolland Sizemore Jr. Peterson argued that developing a budget is the main job for commissioners. “So we owe the taxpayers a rebate. I hope we cut our salaries in half … because there’s really a lot less work to do.” Though the planning cycle would be longer, the board is still required by state law to approve its budget annually – so that process wouldn’t change.

The board will get a better sense of the county’s financial status at its May 15 meeting, when county administrator Verna McDaniel will give a first-quarter update and a “state-of-the-county” presentation. One major factor is a pending decision for the board on whether to issue a $345 million bond to cover the county’s pension and retiree healthcare obligations. The board discussed that topic at a May 2 working session. [See Chronicle coverage: "County Board Debates $350M Bond Proposal."]

One item not on the May 1 agenda was raised during public commentary: The deteriorating condition of North Territorial Road, specifically a section running through Northfield and Salem townships. Residents have collected about 600 signatures on a petition urging the road commission to repair that stretch, and asked the county board to help address the problem “before somebody gets hurt or comes in here shouting or raving.”

County commissioner Dan Smith, who represents the district that includes Northfield and Salem townships, pointed out that there are possible funding mechanisms available to the county, including the possibility of levying a tax under Act 283 of 1909. A 1 mill levy in Washtenaw County would bring in about $13.8 million, based on 2012 property values, he said. He also noted that there’s a similar law on the books that appears to allow townships in Michigan to levy up to 3 mills for roads. That could bring in another $24.9 million throughout the county, he said. In total, about $38 million could be raised in Washtenaw County to fix the roads.

In other action during the May 1 meeting, commissioners gave initial approval to the Washtenaw Urban County‘s five-year strategic plan through 2018 and its 2013-14 annual plan.

The board also declared May 12-18, 2013 as Police and Correction Officers Week, and May 15 as Peace Officers Memorial Day. Dieter Heren, police services commander with the Washtenaw County sheriff’s office, was on hand to accept the resolution on behalf of sheriff Jerry Clayton and all law enforcement agencies in the county. He reminded the board that on May 15 at 10 a.m. there will be a memorial service in the Washtenaw 100 Park in Ypsilanti to “honor the law enforcement officers who have fallen here in Washtenaw County while serving the community,” he said. The park is located at the corner of Michigan Avenue and Ballard Street.

North Territorial Road

Several residents addressed the board to express concern about the deteriorating condition of North Territorial Road. The portions of most concern on the east-west road – located north of Ann Arbor – run through the townships of Northfield and Salem, east of US-23.

Bob Hlavacek told commissioners that he wanted to highlight the condition of North Territorial Road. People have been complaining about it for four or five years. They’ve talked to the county road commission and several county commissioners, he said, but the answer is that the county has no funds for repairing the road. “It’s no longer a waiting situation,” he said. “There’s patch upon patch, and there’s potholes that show up between the patches.” An untold amount of expense has been caused from vehicle damage, including damage to tires, rims and alignments.

People drive over the center line, dodging back and forth to avoid some of the roughest spots, Hlavacek said. The Northfield Township police aren’t happy about it. It would be very easy to lose control of a vehicle. Hlavacek said he and others have circulated a petition online and in person, and have about 600 signatures from people who are concerned about the road. The petition highlights the need to fix North Territorial between Spencer Road and Ridge Road.

Some of the people who signed the petition also made comments. Hlavacek said he wasn’t sure about the validity of the comments, but he wanted to pass them along. Specifically, some people think the lack of road repair is retribution for protests against a road commission proposal to put a facility at North Territorial and Earhart.

Bill Harley told commissioners that he and others have tried to understand the funding priorities of the county and state. There were people who had wanted to rally around this issue a couple of years ago, he said, but some people had argued that because the economy was bad and everyone was suffering, it was better to wait. North Territorial is a multi-community road, he noted, going west of the US-23 corridor and east to Plymouth and beyond. “It is not even close to being a road,” he said. It’s so bad that it’s causing road rage. Harley said he travels North Territorial multiple times a day, and had to replace the front end of his Ford truck for $1,300.

Harley told commissioners that he and others were at the county board meeting to beg for help. He noted that a roundabout was being built at 7-Mile and Pontiac Trail, which is needed “like a hole in the head.” And as bad off as Wayne County is, last year that county paved North Territorial up to the border with Washtenaw. “But Washtenaw has done absolutely nothing,” Harley said. “It looks like the priority for North Territorial Road is misunderstood.” He noted that advocates for the road repair have gathered 600 signatures without even canvassing neighborhoods, and he wanted to know what they should do with those signatures. He asked if there was anything that the county board could do, or anything else he and other residents can do “before somebody gets hurt or comes in here shouting or raving.”

Harley added that “we’ll do anything that’s positive.” Hlavacek asked whether it would be possible to get on the board’s agenda for a more formal discussion.

Arlene DeForest spoke on the same topic. She said she was from Salem Township and was representing the Washtenaw County Farm Bureau. North Territorial is one of the few roads that goes straight east and west, she noted, and when there’s a problem on the expressway, North Territorial is the alternative route. “We’re going to have some deaths pretty soon” because of the road condition, she said. DeForest likened the condition to a track at the General Motors proving grounds, where bad terrain is used to test vehicles. The road is narrow with no shoulder. She urged commissioners to drive the road and see for themselves.

North Territorial Road: Commissioner Response

Conan Smith thanked the speakers for raising this issue, saying he was certain the road’s condition didn’t reflect retribution by the road commission. He joked that it’s probably retribution for electing Dan Smith to the board. [Smith, a Republican, represents District 2, which includes Northfield and Salem townships. He and Conan Smith are not related.] C. Smith noted that the county board doesn’t have jurisdiction over the roads – that’s in the hands of the road commission. The road commission has a prioritization process for capital improvements, and he suggested that the residents talk to engineers at the road commission who could explain that process.

The prioritization process includes scoring the condition of local roads. The worst road in the county is at 9, C. Smith said. North Territorial is scored at 8, “so it’s already pretty high on their list of priorities for repair.” One of the problems is the expense, he noted. The road commission already has plans to spend about $9.5 million on North Territorial improvements, but most of that money isn’t secured yet, he noted. “I know that they’re keenly aware of the problem, and they’re seeking the additional state and federal funds that they need to do a reconstruct on that road.” This year, the road commission does plan to do about $300,000 worth of repairs on North Territorial, he added.

From left: County commissioners Conan Smith (D-District 9) and Rolland Sizemore Jr. (D-District 5).

C. Smith said the county board can let the road commission know that citizens are concerned.

Rolland Sizemore Jr., the county board’s liaison to the road commission, said he agreed that North Territorial is in bad shape. There’s a road in his district that’s in bad shape too. It’s all about the money, Sizemore said. He noted that one option would be for the township to levy a special assessment on property owners to raise money for the repairs. Sizemore told the residents that he’d be glad to work with them, but they weren’t the only ones with road problems in the county.

Dan Smith thanked the residents for making the trip to speak to the board. He’d heard these comments before, and reminded commissioners that he had raised this issue at the board’s March 7, 2013 budget retreat. Some new options have been provided by the state legislature, he noted, in terms of management and funding. “We haven’t really explored either of those options in detail yet,” he added.

D. Smith also pointed to an option that the board discussed but didn’t pursue a couple of years ago – an Act 283 levy for road funding. [See Chronicle coverage: "County Board Poised to Reject Road Millage."] He noted that the board could choose to bring that forward again.

The road commission has made public a map that shows sections of roads in the county that would get attention if state funding is made available, D. Smith said – including three problematic sections of North Territorial, east of US-23. But no one knows if or when that funding might be available. Reconstructing a road that’s beyond repair is very expensive, compared to spending funds on maintenance, he said, so the road commission is trying to make sure roads that are in fair condition don’t deteriorate even more. “Unfortunately, it means a segment like North Territorial, which needs major repair, doesn’t get any attention.”

Andy LaBarre encouraged the residents also to contact their state representative and state senator. There are many proposals in Lansing, but nothing has been decided, he said. Input like this would be helpful. [Northfield and Salem townships are part of District 52 in the state house, represented by Rep. Gretchen Driskell. In the state senate, the area is part of District 18, represented by Sen. Rebekah Warren, who is married to Washtenaw County commissioner Conan Smith.]

Ronnie Peterson noted that the residents had asked specifically about how to proceed. Peterson asked the county administration to contact the road commission and request that a specific discussion take place about North Territorial. Residents are relying on county commissioners to be advocates for them on this issue, he said, so there should be a meeting on it. The county commissioners are elected by the people, and have the responsibility of appointing the road commissioners, Peterson noted.

Dan Smith suggested the Whitmore Lake High School theater as a suitable venue for a public meeting in that part of the county.

County administrator Verna McDaniel said she’d follow up with the board’s liaison to the road commission, Rolland Sizemore Jr. Sizemore stated that he’d call the road commission “first thing in the morning.”

Conan Smith noted that in Gov. Rick Snyder’s proposed funding for roads statewide, the amount for Washtenaw County includes funding for North Territorial that would cover about half of the cost for the project. That funding has not yet been approved, however. “So the more you can reach out to Lansing folks as part of your advocacy effort, the better,” he said.

Later in the meeting, Dan Smith brought up the issue of Act 283 again, saying “I don’t think this horse is anywhere near dead.” He read from Act 283 of 1909: “It shall be the duty of the board of supervisors to raise a sufficient tax to keep any county roads or bridges already built in reasonable repair and in a condition reasonably safe and fit for public travel.” He said he didn’t want to interpret what each of those words mean, but the general meaning seems pretty clear to him – that the county might have a mandate and might have the funds to execute that mandate.

From left: Commissioners Dan Smith (R-District 2) and Kent Martinez-Kratz (D-District 1).

Over the past two years, D. Smith said, he’s asked residents specifically about this possible tax levy. One of the common responses he’s heard is that if the county does the job right, people still won’t like the tax but they “won’t hate it as much.” People are frustrated when they see road repairs that clearly won’t last long, he said. “People see that as throwing good money after bad.”

A 1 mill levy in Washtenaw County would bring in about $13.8 million, based on 2012 property values, D. Smith said. He also noted that there’s a similar law on the books that appears to allow townships in Michigan to levy up to 3 mills for roads. That would bring in another $24.9 million throughout the county, he said. In total, about $38 million could be raised in Washtenaw County to fix the roads. Making a rough estimate of what these taxes could bring statewide, he said the amount that could total about $800 million.

Sizemore responded, saying he didn’t agree that there should be a countywide millage for road repair. He said he felt the same way about last year’s effort by the Ann Arbor Transportation Authority to create a countywide public transit system. He’s willing to work with the road commission and residents to address the roads, but he’s not willing to support a millage. He indicated that one factor was the uncertainty of other possible millages, like one that might be proposed for the new southeast Michigan regional transit authority.

Outcome: This was not a voting item.

County Budget

Two items on the board’s May 1 agenda related to the next county budget, for the period beginning Jan. 1, 2014: (1) setting a board retreat for May 16; and (2) taking a final vote to authorize the development of a four-year budget.

County Budget: Updates & Retreat

Felicia Brabec, chair of the board’s ways & means committee, reported that she would be giving regular updates on the budget development at each meeting. She said that she and board chair Yousef Rabhi attend the bi-weekly budget task force meetings, as well as other budget-related meetings. The finance staff has scheduled its first round of meetings with all county departments, with second rounds as needed, Brabec reported. And county administrator Verna McDaniel will be presenting a first-quarter financial update to the board on May 15, as well as a “state-of-the-county” report.

Felicia Brabec (D-District 4) is chair of the board’s ways & means committee, on which all commissioners serve.

Brabec noted that the board would be voting later that night on developing a four-year budget, and that on May 2 the board would be briefed on a bond proposal to fund the county’s pension and retiree healthcare liabilities. [See Chronicle coverage: "County Board Debates $350M Bond Proposal."]

Rather than the normal working session on May 16, the board would be holding another budget retreat. This one will be located at the county Learning Resource Center (LRC), 4135 Washtenaw Ave. – near the county jail complex.

Ronnie Peterson expressed concern about the location. He felt that all meetings – especially related to the budget – should be televised and held in the board chambers, so that the public can know where commissioners stand in terms of priorities and funding. It’s especially crucial if the county moves toward a four-year budget planning cycle, he said, adding that he had concerns about that process, too. [The board holds its regular meetings in the boardroom of the county administration building at 220 N. Main in downtown Ann Arbor.]

Conan Smith responded to Peterson, saying that he struggles “in this room, to have the kind of conversation with all of you – with my peers – that lets me get to that prioritization process.” Smith said he’s been a big advocate for getting out of the boardroom to have that conversation, but he’s torn on this issue. He wants the board as a team to work in a productive space, while at the same time giving the public access to those conversations. It might be doable to televise the retreat at the LRC, he said, noting that late last year, the interview process for appointments to the southeast Michigan regional transit authority had been held at the LRC and were videotaped.

C. Smith felt that the retreat was an opportunity for the board leadership to hear the views of other commissioners, but that the formal budget conversation would happen during a regular meeting in the boardroom.

Board chair Yousef Rabhi said it wasn’t his intention to take the retreat off camera or off the record. He stressed that the board is “always on the record.” The meetings are open to the public, and minutes are taken. The May 16 retreat is at a location that’s on a bus route, he noted, so that it’s more easily accessible. The point of having it at a different location is to “create a different environment for dialogue.” He said they were going above and beyond the requirements of the Open Meetings Act, but he was willing to explore options for recording the retreat – perhaps with audio or video recordings.

Greg Dill, the county’s infrastructure management director, reminded commissioners that when the boardroom had been renovated several years ago, meetings were held in the LRC and had been televised. So that capability exists, he said.

Rolland Sizemore Jr. didn’t think the previous retreat format had worked well. “You guys probably have the votes to do the [four-year] budget and you guys have probably got the votes to go out and get the $350 million [bond] that you guys plan on doing, so I’m not inclined to go anywhere where we’re not on camera … I think the public deserves to know what goes on.”

From left: Commissioners Andy LaBarre (D-District 7) and Ronnie Peterson (D-District 6).

Sizemore also wondered why the retreat wasn’t being held at SPARK East in Ypsilanti. Rabhi replied that the LRC was chosen because it’s the largest county facility – other than the boardroom in the downtown administration building – that could handle a larger crowd. He said he wasn’t opposed to exploring other locations.

Peterson said it was important to outline what would happen at the May 16 retreat. “If it’s a hug fest, I don’t have to be there.” If the meeting is about setting county priorities, then he’d be interested in it. He also stated that if the meeting isn’t televised, he wouldn’t attend – he said he’s been very consistent about that. Meetings shouldn’t be held “in the shadows,” especially in discussing a budget that extends beyond the commissioners’ terms in office. [County commissioners are elected for two-year terms. The proposed budget planning cycle would extend for four years.]

Peterson also noted the magnitude of the possible $350 million bond proposal, saying the public should be fully informed about that.

Andy LaBarre pointed out that the board would be discussing the bond proposal at the May 2 working session, and he suggested that comments and questions about that would be best saved until then.

Replying to Peterson, Rabhi said he wanted to be “crystal clear – we do not do business in the shadows. We do business in the public eye.” Minutes are taken, the press and public are invited, and most meetings are on camera, he noted. Rabhi said he’s never served on any other board that has held its retreat in a boardroom. Retreats are typically held in other locations “to facilitate the retreat environment,” he said. The county board has also held previous retreats that weren’t televised, he noted. Even so, Rabhi said he’s willing to work with staff and commissioners to find a way to record the retreat proceedings above and beyond the requirements of the Open Meetings Act. The openness of meetings is a priority of his and of the board, Rabhi said.

Rabhi added that the retreat is not focused on the question of bonding. That discussion would happen at the May 2 working session, he said, as well as at upcoming board meetings. All of that will be televised, he said.

The retreat on May 16, Rabhi said, “will not be a love fest. It will not be a pat-on-the-back occasion.” It will be a chance for the board to delve into its general priorities for the budget. The last retreat generated a lot of ideas, he said. Now, the board needs to take those ideas and weight their priorities. “It’s going to be work,” Rabhi said. “There aren’t going to be any hugs, unless somebody wants to give me a hug.”

He said he appreciated Peterson’s request to hold the retreat on camera, and that they can explore the possibility. However, he added, “I think that it’s unfair to me for you to continue to harp on this, when I have already committed to you that we are going to be looking into this. I just feel that it’s inappropriate. You didn’t mention my name, but you are directing it at me, and I feel that it’s inappropriate. I need to say that on record.”

Rabhi said he hoped the retreat could help the board work with administration to set a budget that reflects the board’s priorities. It’s especially important since the administration will be developing a four-year budget, he said.

Yousef Rabhi (D-District 8) is chair of the county board.

Peterson replied that he tried not to direct his comments to anyone personally. But when someone directs a comment to him personally, they can “expect a personal comment back,” he said. He wondered whether there was a document that laid out the content of the May 16 retreat. Brabec responded, saying there wasn’t a written document yet for the retreat.

Peterson stated that when things are done outside of the boardroom, “it puts a shadow over it.” He said no one has been anointed to run things. “All of us are equal at this table as commissioners,” he added. Documents should be equally shared with all commissioners, he said.

Regarding the issue of appropriateness, Peterson said, “I will bring up any item I deem is appropriate, as a commissioner representing my respective district, no matter what anybody thinks.” He said he knows some people are trying to guide this process. “Forget about guiding,” he said. “Just do your job that you’re elected to do as commissioner. There’s no minority at this table.” Apparently directing his comments to Rabhi as board chair, Peterson said: “You’re only elected by your colleagues to serve in the capacity that you serve.”

Peterson also said that the bond proposal is part of the budget, so he would be talking about that throughout the budget process. “You’ll hear me talk about a lot of the issues that are important to me as a commissioner – no matter who likes it.”

County Budget: Setting the Retreat Date

Later in the evening, Rabhi put forward a resolution that canceled the May 16 working session and set the budget retreat for that date instead, to be held at the LRC. When Sizemore asked if the retreat would be televised, Rabhi replied that the intent is to make sure there would be some kind of recording. Sizemore repeated the question: “Is this going to be on video or not?”

At that point, Rabhi suggested taking a straw poll of commissioners on this issue. LaBarre said that if it’s possible to videotape the retreat, that would be great. But if it can’t be videotaped, he felt the board should still proceed with the retreat, making every effort to comply with the Open Meetings Act and the spirit of transparency.

Other commissioners indicated agreement to videotaping the retreat. Rabhi said they’d go ahead and videotape it.

Alicia Ping suggested adding the LRC’s address to the resolution setting the retreat. She noted that not everyone knows where the facility is located. Rabhi suggested putting the bus route on the public meeting notice as well. [AATA's Route #4 goes past the LRC at 4135 Washtenaw Ave.]

Peterson reiterated his position that all budget-related meetings should be held in the boardroom.

Outcome: The board voted to cancel the May 16 working session and set a budget retreat for that date instead at the Learning Resource Center, 4135 Washtenaw Ave., starting at 6 p.m. Voting against the resolution were Ronnie Peterson and Dan Smith. Rolland Sizemore Jr. was out of the room during the vote.

After the vote, Rabhi stated that he wants to make sure everyone feels this is a collaborative environment, where everyone can share their thoughts and feelings about the process and about the way business is being done. He apologized if commissioners felt that he had reacted inappropriately to comments that were made during the meeting. He welcomed people to share their thoughts and concerns, “whether we agree or not.” He thanked commissioners for their work, and for sharing their values and the values of the people they represented.

County Budget: Four-Year Cycle

On the May 1 agenda was a resolution authorizing the development of a four-year budget planning cycle, a change from the current two-year cycle that’s been in place since 1994. The board had taken an initial vote on the issue at its meeting on April 17, 2013, with Ronnie Peterson dissenting and Rolland Sizemore Jr. absent.

The board had been briefed on the issue at a Feb. 21, 2013 working session. County administrator Verna McDaniel has cited several benefits to a longer budget planning cycle, saying it would provide more stability and allow the county to intervene earlier in potential deficit situations. [.pdf of McDaniel's Feb. 21 presentation] State law requires that the board approve the county’s budget annually, but a quadrennial budget would allow the administration to work from a longer-term plan.

County administrator Verna McDaniel and commissioner Rolland Sizemore Jr. (D-District 5).

With a two-year approach, larger cuts must be made within a shorter timeframe to address anticipated deficits. McDaniel has argued that a four-year plan would allow the administration to identify potential deficits at an earlier date, and target savings that would compound over the longer period, making the overall budget more manageable. Currently, the budget is being developed for 2014-2017.

Commissioners have noted that this approval provides direction to develop a four-year budget plan, but at any time the board can decide to revert to the previous two-year cycle. One of the main concerns mentioned by commissioners, including Peterson, is the fact a four-year budget cycle doesn’t synch with the two-year election cycle for terms on the board.

During the May 1 meeting, Dan Smith said he wanted to be perfectly clear that the board is simply allowing the process to move forward. He was reserving judgment about whether the final budget that’s produced should be adopted. “I’m certainly not saying that by voting on this [resolution] that I’ll be voting for a four-year budget.” But it’s good to continue exploring the possibility, he said. There are some good things about it, though he continues to have some serious concerns.

Sizemore asked for clarification about the timeline. McDaniel said the ultimate deadline for approving the budget is Dec. 31, so it would need to happen by the board’s last meeting in December. She plans to bring the budget forward much sooner than that, however, saying “the earlier, the better.” The process starts by meeting with the different departments in the county, she said, and the board will be updated along the way. At the board’s May 15 meeting, McDaniel will be giving an update on the county’s current financial situation for the first quarter through March, to set the stage for crafting the budget.

Sizemore said he hoped the budget wouldn’t be rushed through initial and final approval during the same meeting. He felt that this was happening too often with other items that come before the board.

Yousef Rabhi emphasized that even though the budget would be prepared for a four-year period, the board is evaluating the county’s financial condition on a quarterly basis. “We’re taking a far look down the road, but we’re also making sure that we benchmark the progress that we’re making.” He said he’d gotten some feedback that indicates people aren’t sure what the four-year budget is intended to do. People have concerns about how the board can adjust for changes that happen over the four-year period, such as fluctuations in tax revenues, he said. Rabhi indicated that there are ways the board will be able to make adjustments.

McDaniel also noted that a budget reaffirmation is required every year, and the board would have the opportunity to make changes at that point.

Peterson highlighted the fact that the four-year budget wasn’t a projection or strategic plan – it would be a budget, and the only way to change it would be by a majority vote of the board. McDaniel replied that the board has authority to review or change the process at any time.

Peterson pointed out that this would be the first time in the county’s history that a four-year budget would be developed. He didn’t know of any other municipality or government that used this approach. The projections could be off, he noted, especially because of changes in state or federal funding. Anything could happen in the gubernatorial or presidential election, and priorities could change. New technology will also result in changes to the government, he said. “I’m going to vote against this, because I don’t see how you can project that far out.”

Peterson said his view isn’t a reflection of the administration or finance staff – they’re just carrying out the wishes of the board, he noted. The board has responsibility to set the county’s priorities, but with a four-year budget, most of that responsibility will be gone. “So we owe the taxpayers a rebate. I hope we cut our salaries in half … because there’s really a lot less work to do.” The budget is the county board’s main task, he said, other than accepting the annual equalization report and making appointments to various boards and commissions.

From left: Yousef Rabhi (D-District 8), Alicia Ping (R-District 3) and Andy LaBarre (D-District 7).

Peterson contended that it would be difficult to modify a four-year budget. As an example, he noted that the emergency allocation from the county in response to last year’s tornado touchdown in the Dexter area would be more difficult to do, if there were a four-year budget in place. “With a four-year budget, that flexibility is not there,” Peterson said. Other unforeseen needs might include overtime for police services, technology infrastructure, or court costs. He hoped that the board would discuss the impact of a four-year budget with department heads and other elected officials. [The county board sets the budget for all county departments, including those led by elected officials: The sheriff, prosecuting attorney, treasurer, clerk/register of deeds, and water resources commissioner.]

Peterson said he wasn’t trying to make this a hostile discussion about the budget, but he didn’t see how it would be possible to develop a four-year budget.

Sizemore said he echoed Peterson’s concerns. He noted that the circuit court is asking for $2 million for a software update. “That just comes out of the blue, and I don’t know how we’re going to handle things like that if we have a four-year budget,” he said. The district court is over budget, he added: How will things like that be predicted, and where will the money come from to address it?

Alicia Ping clarified that the resolution in front of commissioners that night was authorizing the administration to develop a four-year budget. The board wasn’t voting on the budget itself, she noted.

Sizemore responded, asking why the board would tell the administration to develop a four-year budget if there weren’t already the votes to support adopting a four-year budget? That would be a waste of staff time, he said. Sizemore added that he wouldn’t support it. The vote is premature and the issue needs to be explored more before moving ahead.

Outcome: Commissioners gave final approval to develop a four-year budget on a 7-2 vote. Dissenting were Ronnie Peterson and Rolland Sizemore Jr.

Urban County Strategic Plan

Washtenaw Urban County‘s five-year strategic plan through 2018 and its 2013-14 annual plan were on the May 1 agenda for initial approval. [.pdf of draft strategic and annual plans]

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

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

The plans indicate that the Urban County area is expected to receive about $2.7 million annually in federal funding, which will be used for these broad goals:

1. Increasing quality, affordable homeownership opportunities

2. Increasing quality, affordable rental housing

3. Improving public facilities and infrastructure

4. Supporting homeless prevention and rapid re‐housing services

5. Promoting access to public services and resources

6. Enhancing economic development activities

A public hearing had been held at the board’s April 17, 2013 meeting.

Urban County Strategic Plan: Board Discussion

Conan Smith asked about whether there is any integration between the Urban County strategic plan, and the strategic planning of other county operations, such as the workforce development or community action boards.

Brett Lenart, housing and infrastructure manager for the county’s office of community & economic development.

Brett Lenart, housing and infrastructure manager for the county’s office of community & economic development (OCED), said the best example of that integration is related to human services. A lot of the funding that the county gets for human services is administered through this process, he said. The strategic plan itself is fairly formulaic and general, following HUD’s requirements. But it’s integrated in terms of the synergy of activities, he said.

Lenart added that the next phase of OCED’s development as a department is to look for more intersections between economic development and workforce development. Human services and affordable housing have always been strongly linked, he noted, and going forward the OCED will look for more strongly integrating the other areas, too.

C. Smith said it might be interesting to “tease out” of this plan the relevant sections related to other citizen boards – the workforce development board and community action board – and to have a short presentation to each of those boards about the Urban County initiatives. He noted that integrating these areas was one of the reasons why the county merged the office of community development with the economic development and energy department.

Ronnie Peterson asked whether the Urban County budget would be coming before the board later this year. County administrator Verna McDaniel replied that this Urban County budget is for the fiscal year starting July 1, 2013, “so I believe this is it.”

Peterson then expressed concern that the commissioners weren’t getting more time to review this budget. Lenart explained that it’s a five-year plan that identifies general categories of work, but OCED will bring forward specific projects within those categories each year. The five-year plan gives an estimate of the total anticipated federal allocation during that period. The more detailed budget is for only one year, starting July 1. He noted that this is the Urban County’s third five-year plan.

Peterson said he’d support the resolution on its initial vote that night, but he would have additional questions when it came for a final vote on May 15.

Felicia Brabec noted that HUD’s priorities are changing. Are those changes reflected in the Urban County’s plans? Generally speaking, Lenart replied, the OCED has set up a framework that will allow it to do the work it has traditionally done with this federal funding. If HUD’s priorities and funding levels change, then OCED would look at the scope of its programs and how those programs are prioritized in the face of decreasing revenues.

Alicia Ping said she supported the Urban County “110 percent.” Six of the 10 municipalities that she represents in District 3 are part of the Urban County, which makes those communities eligible for federal funding that they wouldn’t otherwise be able to receive. She was glad that OCED director Mary Jo Callan had recruited more municipalities to join the Urban County a few years ago.

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

Peterson spoke again, noting that federal funding is shrinking. At some point, the county will have to make up the difference if it wants these programs to continue – whether they are programs managed by OCED, or by other county departments. So the question then becomes “Where does the money come from?” he said. Peterson felt that this warranted a fuller discussion, because “eventually, the well will run dry.”

Conan Smith noted that the housing challenge is universal across the county – it’s a dispersed problem. In areas where problems are greater – on the far west side, or in the city of Ypsilanti and Superior Township – it’s important to start looking at systemic investment in housing and workforce development based on geography, he said. In reading the strategic plan, C. Smith said he was surprised at how dispersed the housing problem was. “I thought it would be more concentrated.”

Responding to some of Peterson’s comments, Brabec said she agreed that it was important to consider the county’s entire budget – including federal funding – and not just look at the general fund budget. The county needs to be concerned about declining federal and state funding too.

Outcome: Commissioners unanimously gave initial approval to the Urban County five-year strategic plan through 2018 and its 2013-14 annual plan. A final vote is set for May 15.

Weatherization Grant

Commissioners were asked to give final approval to accept $185,654 in funds for the county’s weatherization assistance program. The unanimous vote at the board’s May 1, 2013 meeting, followed initial approval on April 17, 2013.

The funding roughly equals the amount of federal weatherization dollars that the county received in 2012, which was a decrease of about 65% compared to 2011 federal funding levels. The current funding is allocated through the 2013 Low Income Home Energy Assistance Program (LIHEAP). The county last received LIHEAP funding in 2010, but has received weatherization grants from other federal funding sources in the intervening years.

For the period from April 1, 2013 to June 30, 2014, the program is expected to weatherize 27 homes. According to a staff memo, the work includes an energy audit inspection and follow-up inspection of the completed weatherization work, which might include attic and wall insulation, caulking, window repairs, furnace tune-ups, furnace replacements, and refrigerator installations. To qualify for the program, residents must have an income at or below 150% of federal poverty, which is about $35,325 for a family of four.

Outcome: Without comment, commissioners gave final approval to accept the weatherization funds.

Communications & Commentary

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

Communications & Commentary: Police & Corrections Week

Board chair Yousef Rabhi read a resolution declaring May 12-18, 2013 as Police and Correction Officers Week, and May 15 as Peace Officers Memorial Day, in honor of the local police and corrections officer who have died in the line of duty. [.pdf of resolution for Police & Corrections Officer Week] The presentation was followed by a standing ovation from the board and staff.

From left: Greg Dill, Washtenaw County’s infrastructure management director; county administrator Verna McDaniel; and Dieter Heren, police services commander.

Dieter Heren, police services commander with the Washtenaw County sheriff’s office, was on hand to accept the resolution on behalf of sheriff Jerry Clayton and all law enforcement agencies in the county. He reminded the board that on May 15 at 10 a.m. there will be a memorial service in the Washtenaw 100 Park in Ypsilanti to “honor the law enforcement officers who have fallen here in Washtenaw County while serving the community,” he said. The park is located at the corner of Michigan Avenue and Ballard Street.

Communications & Commentary: Medicaid Expansion

Andy LaBarre informed his board colleagues that he intends to bring a resolution to the May 15 meeting regarding Medicaid expansion. He said he’d be talking with commissioners individually about his resolution before then. He noted that at a recent meeting of the Area Agency on Aging 1-B, that board approved a resolution in support of Medicaid expansion. [LaBarre serves as the county's liaison to the AAA 1-B board.]

Responding to a follow-up email query from The Chronicle, LaBarre indicated that the resolution he plans to bring forward will state the county’s support for Medicaid expansion, highlighting some of its benefits.

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

Next regular board meeting: Wednesday, May 15, 2013 at 6:30 p.m. at the county administration building, 220 N. Main St. in Ann Arbor. The ways & means committee meets first, followed immediately by the regular board meeting. [Check Chronicle event listings to confirm date.] (Though the agenda states that the regular board meeting begins at 6:45 p.m., it usually starts much later – times vary depending on what’s on the agenda.) Public commentary is held at the beginning of each meeting, and no advance sign-up is required.

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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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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.

Suellyn Scarnecchia, UM's general counsel, was one of the few executives in the room at a Feb. 21 special meeting of the board of regents. All regents and UM president Mary Sue Coleman participated via conference call. Scarnecchia was asked by some regents to weigh in on the legality of the meeting, in the context of compliance with Michigan's Open Meetings Act.

Ultimately, the board voted 6-2 to formally oppose the bill, which was to be considered later that morning at a senate committee hearing in Lansing. [The committee later in the day voted to recommend the bill for passage by the full senate.]

The board’s two Republican regents – Andrea Fischer Newman and Andrew Richner – dissented. It was a vote along the same party lines as action taken at the regents’ May 19, 2011 meeting, when the Democratic majority of the board passed a resolution supporting the right of GSRAs to determine whether to organize. Coleman, who chairs the regents’ meeting but is not a voting member, had spoken against the resolution prior to the May vote. At subsequent regents’ meetings, several students and faculty have spoke during public commentary in opposition to the board’s action.

Much of the Feb. 21 special meeting focused on whether the meeting itself was legal. It was convened by invoking a rarely used 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.

The university’s general counsel, Sue Scarnecchia, was asked by some of the regents to weigh in on the legality of the meeting. She stated that the meeting had been called legally, based on her reading of the regental bylaw. She did not comment explicitly on how compliance with the bylaw might relate to conformance with the OMA. 

Meeting Legality: Open Meetings Act vs. Regental Bylaw

The state’s Open Meetings Act states that notice of a special meeting for a public entity must be posted at least 18 hours in advance of the meeting. And a Michigan attorney general opinion issued by Frank Kelley in 1980 interprets that part of the OMA statute to require that the notice be accessible to the public continuously for the 18 hours preceding the meeting.

For the Feb. 21 special meeting of the regents, the media were notified via email at about 11 p.m. on Feb. 20, though the email did not indicate a topic for the meeting or reason for why it was being convened. Regents themselves had been notified of the meeting via an email from UM president Mary Sue Coleman at about 5 p.m. on Feb. 20. It’s not clear that the meeting was otherwise publicly noticed.

Coleman started the meeting by noting that it had been called to consider emergency action, as allowed by regental bylaw 1.01. The bylaw states: ”Emergency action may be taken by the board between meetings if and when any matter arises which, in the opinion of the president, or any three members of the board, requires official action by the board prior to the next meeting. An affirmative vote by telephone, email, or facsimile from five members is required for action.”

Immediately after Coleman called the session to order, regent Andrea Fischer Newman raised the question of the meeting’s legality. She said she didn’t understand how the regental bylaw applied under the Open Meetings Act, and read aloud the relevant sentence from the OMA:

“Nothing in this section shall bar a public body from meeting in emergency session in the event of a severe and imminent threat to the health, safety, or welfare of the public when 2/3 of the members serving on the body decide that delay would be detrimental to efforts to lessen or respond to the threat.”

She asked for an explanation about the need for this “emergency” session.

Board chair Denise Ilitch said it was her understanding that the university’s general counsel believed the meeting was being held legally. When Newman said she hadn’t seen an opinion to that effect, Ilitch replied that the counsel’s opinion had been given verbally. She told Newman that Newman’s objection had been noted.

Suellyn Scarnecchia, UM’s vice president and general counsel, was one of the few executives who were physically present in the Fleming administration building boardroom during the meeting. She reiterated Coleman’s statement that the meeting was convened as permitted under regental bylaw 1.01, and she read aloud the bylaw.

Newman asked how an emergency action is defined. That’s not part of the bylaw, Scarnecchia replied. The bylaw indicates that it’s based on the opinion of the president or three regents.

Andrew Richner asked who had requested the meeting. Coleman said she did not request the meeting, but that three members of the board had requested it. Ilitch said she’d received a phone call from Coleman asking to schedule the meeting, based on discussions that Coleman had with other regents.

One regent suggested that Newman and Richner had been the regents who requested the meeting. Newman responded by saying she had, in fact, wanted to publicly discuss the senate bill and take a position on it, but she assumed that it would be done in a way with sufficient advance notice and detail about the meeting’s purpose. This was not an emergency, she said, and “this is not that meeting.”

Ilitch noted that the senate government operations committee was holding a hearing on the bill later that morning, at 11 a.m. Newman replied that the bill had been introduced on Feb. 15, and that the regents had held their monthly meeting the following day, on Feb. 16. The bill is not moving to a vote today, she said. It’s simply a hearing.

Ilitch again stated that Newman’s concerns had been noted, and said she felt the meeting should move forward. Martin Taylor agreed, saying he believed the meeting was legal but that subsequent determinations can look at whether the meeting is legal or not.

Richner again asked who had requested the meeting – it hadn’t been him.

Larry Deitch replied that the president had told Deitch the meeting would be held. His understanding was that it needed to happen immediately because of the 11 a.m. senate hearing. He said he had previously asked for a discussion to take place at the regents’ regular Feb. 16 meeting, but he had received no response to that request.

Julia Darlow asked whether Scarnecchia was giving the board her legal opinion about the meeting’s legality. Scarnecchia said that based on the information she was given on Monday evening, the meeting is compliant with regental bylaw 1.01. It does require that the meeting be called by either the president or three regents, she said.

Darlow noted that regents received an email from Coleman on Monday evening, which Darlow took to mean that Coleman was calling the meeting. In that case, there’s no need for three regents to call it, she said, asking for confirmation from Scarnecchia. Yes, Scarnecchia said. If the president calls the meeting, that’s compliant with the bylaw.

Is there any other reason to think that the meeting has been called illegally? Darlow asked. Scarnecchia said there are other considerations that could apply under OMA, but based on her reading of the regental bylaw, ”this has been called legally.”

Richner, an attorney, said he thought he’d heard from Coleman that the issue wasn’t an emergency. [The conference call interactions and sound quality sometimes made it difficult to recognize who was speaking.] If the president doesn’t think it’s an emergency, he said, then who are the three regents that do? He told Scarnecchia that he didn’t see how she could declare that the meeting is compliant.

Again Ilitch told Richner and Newman that their concerns were duly noted. Again Richner asked who had called the meeting. Deitch noted that at 4:49 p.m. on Monday, Feb. 20 the board had received an email from Coleman calling the meeting.

Coleman said she had talked with several regents, and it had been clear that there was a desire to call a meeting and that they could legally do it.

Ilitch said it was very hypocritical on Newman’s part to question the meeting now. Newman replied that she didn’t want a meeting held in this way.

Resolution Opposing Senate Bill 971

At this point, Coleman asked whether anyone wanted to make a presentation. Larry Deitch said he’d like to step back from the previous exchange and calmly present the history and context in which this issue arises. He then wanted to present an explanation and rationale for the resolution.

Andrea Fischer Newman asked if Deitch had shared his resolution with other regents. No one else has seen it, Deitch replied. “Amazing,” Newman commented.

Deitch continued. In April 2011, the Graduate Employees Organization (GEO) and the American Federation of Teachers/Michigan (AFT/MI) filed a petition with the Michigan Employment Relations Commission (MERC) to become the representative of GSRAs under the state’s Public Employment Relations Act. At their May 2011 meeting, the board adopted this resolution in response, supporting the GEO’s efforts:

Consistent with the University of Michigan’s proud history of strong positive and mutually productive labor relations, the Board of Regents supports the rights of university Graduate Student Research Assistants, whom we recognize as employees, to determine for themselves whether they choose to organize.

In 1981, Deitch continued, MERC had ruled with GSRAs are not employees. The regents’ May 2011 resolution is predicated on the judgment that facts have changed materially since that time, he said. Hearings have been held before administrative law judge Julia Stern, who’ll be making a recommendation to MERC in March. The purpose is for MERC to determine whether GSRAs are employees or not, Deitch said, adding that it’s unknown how MERC will rule.

If MERC rules that GSRAs are employees, then it’s highly likely that there will be an election, Deitch said. GSRAs would vote on whether to be represented by the GEO in collective bargaining with the university. If there is an election, Deitch said, it’s not clear whether a majority of the roughly 2,000 GSRAs will vote for a union.

Regents have not taken a position on whether GSRAs should be represented by a union “and we do not do so today,” Deitch said. The decision is predicated on freedom of choice. Others in the university, including the president, have expressed opposition to the idea of GSRAs as employees, but that opposition has not been inhibited by the regents or anyone else, he said.

Deitch noted that Republican state Sen. Randy Richardville introduced senate bill 971 on Feb. 15, and the senate government operations committee, which Richardville chairs, would be holding a hearing on it later that morning (Feb. 21). The bill states:

An individual serving as a graduate student research assistant or in an equivalent position and any individual whose position does not have sufficient indicia of an employment relationship is not a public employee entitled to representation or collective bargaining rights under this act.

Deitch said he believed strongly that the university should oppose this bill, and gave several reasons for his view. The outcome of MERC’s review is unknown. There is no basis for taking away the jurisdiction from MERC. The bill is also an improper incursion into the internal decision-making of the university. It’s tantamount to changing the rules in the middle of the game, and is a violation of due process, he said.

Deitch then moved a resolution stating that UM opposes the adoption of senate bill 971. It directed Cynthia Wilbanks, UM vice president for government relations, to take “all available action” and to articulate UM’s opposition to legislators and, if necessary, the governor’s office. That action could include – but is not limited to – testimony, the development of position papers, or the hiring of lobbyists. The resolution also stated that Wilbanks should report to the chair of the board or a designee on progress related to the legislation.

Resolution Opposing Senate Bill 971: Board Discussion

Andrea Fischer Newman started the discussion by questioning whether this resolution qualified as an emergency action. In her 17 years on the board, regents have never used this process and never called a meeting that wasn’t given 18-hours notice as required by the Open Meetings Act, she said. To take action without the opportunity for public commentary flies in the face of openness and inclusion. Even the meeting notice itself didn’t indicate a topic, she observed. Newman said she hadn’t planned to participate until she learned that a quorum would be present.

The issue of whether UM is subject to the state’s Public Employment Relations Act (PERA) has been settled, Newman said – the Graduate Employees Organization (GEO) is a reflection of that. The legislature sets broad policy goals, then state agencies create more detailed regulations to carry out legislative mandates. This general principle applies to MERC as well. To say that the legislature should stay out of the issue reflects a misunderstanding of the basic operation of government, she said, and it’s embarrassing.

Newman noted that while six regents have taken the position that GSRAs are employees, two regents – along with the president, provost, deans, and more than 800 students and faculty – disagree, she said. It could fundamentally alter the relationship between faculty and students.

Although she opposed this resolution, Newman asked that all regents be kept informed about action in Lansing. Any information provided to one regent should be provided to all, she said.

Andrew Richner supported Newman’s remarks. The meeting notice was inadequate, he said, and he would have appreciated more public input. He said he hoped they could table he resolution in order to have a more thoughtful and broader discussion. However, he did not make a formal motion to table the resolution.

Like Newman, Richner noted that many UM administrators, faculty, staff and students opposed the view that GSRAs should be treated as employees. In its 1981 ruling, MERC stated that the assistantships are like athletic scholarships, and their essential nature is educational. He believed the board should support the state legislation.

Katherine White weighed in by saying it was her understanding that the president and Newman had wanted this meeting, and that the university’s general counsel said that the meeting was appropriately called. She supported the resolution.

Denise Ilitch spoke next, saying she has a strong belief in freedom of choice – it’s a value of the university. She said the president called the meeting, and that other regents supported it. Under the advice of general counsel, it was an appropriately called meeting, she said.

Libby Maynard described Deitch’s resolution as articulate but more detailed than she would have made it. She felt the university should advocate against the bill. She said she didn’t think they’d be successful, however, because they don’t have control of the legislature or the governor’s office. [She seemed to be referencing the Democratic majority of the board in her statement. The university itself is not an overtly partisan institution.]

When Coleman asked whether Maynard wanted to offer an amendment, Maynard replied that it was difficult to amend something that you can’t see – a reference to the fact that Deitch’s resolution had not been distributed to the regents in written form.

Newman asked for a clarification. The resolution stated that Wilbanks would report to the board chair, not the board. It’s been the practice for university executives to report to the entire board, she noted. Deitch indicated that he would accept it as an amendment – it was his intent for Wilbanks to report to the board. Taylor said if that was Deitch’s intent, there was no need to go through the “rigmarole” of voting on an amendment.

Julia Darlow noted that the context of the senate hearing was relevant to the question of asking for a meeting that morning. She observed that PERA is general legislation that’s not in conflict with the constitutional autonomy of the university. But senate bill 971 specifically picks out the university, and therefore does conflict with UM’s autonomy.

Darlow also clarified with Deitch that his intent for the phrase “all available action” was in the context of what’s appropriate in the changing and “unique” legislative environment.

Coleman took a roll call vote of the regents.

Outcome: By a 6-2 vote, regents approved the resolution opposing senate bill 971 and directing Wilbanks to advocate against it. Dissenting were Andrea Fisher Newman and Andrew Richner.

Outcome of Senate Committee Hearing

Michael Benson, UM graduate student body president, attended the 11 a.m. hearing of the senate government operations committee on Feb. 21. He reported that the committee heard testimony from six people – three who supported the bill, and three who opposed it. Benson said that he spoke on the issue from a neutral platform, while others submitted comment cards voicing their views.

Update after publication: According to a report in the Michigan Information & Research Service (MIRS), Cynthia Wilbanks – UM vice president for government affairs – was one of the people who testified in opposition to the bill. Wilbanks told the committee that the bill would ”interfere in the internal decision-making of the university,” according to MIRS.

After the hearing, committee members – in a 3-2 party line vote – recommended the bill for passage by the full senate, which will take up the bill at a later date.

Present (via conference call): Mary Sue Coleman (ex officio), Julia Darlow, Larry Deitch, Denise Ilitch, Olivia (Libby) Maynard, Andrea Fischer Newman, Andy Richner, Martin Taylor, Kathy White.

Next board meeting: Thursday, March 16, 2012 at 3 p.m. at the Fleming administration building on UM’s central campus. [confirm date]

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From left: Ann Arbor housing commissioners Andy LaBarre and Ronald Woods at the Oct. 12 special meeting. (Photos by the writer.)

Commissioners praised all four candidates, but Jennifer L. Hall emerged as the leading choice. Four of the five housing commissioners selected her as their first choice in a straw poll at the beginning of the meeting. Hall currently serves as housing manager for the Washtenaw County/city of Ann Arbor office of community development. In advocating for Hall, board member Leigh Greden – a former city councilmember – noted that her knowledge of the local community is a strong asset.

But after about 90 minutes of discussion, commissioners decided to move ahead with three of the four finalists: Hall, Damon Duncan and Bill Ward. Both Duncan and Ward have more extensive public housing experience than Hall, primarily with the Detroit housing commission. The other finalist, Nick Coquillard, has served as deputy director of the Ann Arbor housing commission and is now interim director.

During the meeting, much of the discussion focused on the vision, leadership and management styles of the candidates, and how those styles would fit the existing staff focus on teamwork and customer service. As a backdrop to the discussion, the housing commission has seen some dramatic leadership changes over the past two years – including dissolution of the previous board in 2010, and a previous change in executive directors.

At the beginning of the meeting, Ronald Woods, the only commissioner who did not indicate a preference for Hall, asked whether it would be possible to conduct some of their discussion in closed session. He felt it would allow for a more candid exchange of opinions. But Kevin McDonald of the city attorney’s office informed the board that this was a public hiring process, and needed to be held in public view.

The executive director of the housing commission is one of only four positions in city government that is required to have a public hiring process, McDonald told the board. The other positions are city administrator, city attorney, and executive director of the Ann Arbor Downtown Development Authority.

The board will take up the hiring decision again at their regular meeting on Wednesday, Oct. 19. The meeting is open to the public and starts at 6 p.m. at Baker Commons, 106 Packard (the corner of Packard and Main) – a housing commission property. It’s possible that commissioners will make a final decision then, or continue the discussion at a later date.

Housing Commission: Some Background

The Ann Arbor housing commission (AAHC) oversees the city’s public housing units, as well as the Section 8 program for Washtenaw, Monroe, and western Wayne counties. Section 8 provides vouchers that subsidize rent for low-income residents living in privately-owned properties. The commission’s public housing units are located throughout the city of Ann Arbor and include Miller Manor, Baker Commons, North Maple Estates, Hikone and Hillside Manor, among several other properties. Much of the funding for these programs comes from the federal U.S. Dept. of Housing & Urban Development (HUD).

The housing commission has gone through some dramatic leadership changes over the past few years. The most recent executive director, Marge Novak, resigned effective July 29, 2011 to take a position with an affordable housing investment firm. She had been hired for the permanent job in May 2010 after serving as interim for 10 months.

Novak’s hire came less than two months after the city council voted, at its March 15, 2010 meeting, to dissolve the housing commission board and appoint new members. Among other issues, the city administration had been dissatisfied with that board’s progress towards hiring an executive director. [For additional background, see Chronicle coverage: "Housing Commission Set to Hire Director"]

Marta Manildi is the only current board member who was part of the previously dissolved board. She is an attorney with Hooper Hathaway, the same law firm that employs Ann Arbor city councilmember Christopher Taylor. Other current housing commission board members include former city councilmember Leigh Greden; Andy LaBarre, a former aide to Congressman John Dingell and current vice president of government relations and administration at the Ann Arbor/Ypsilanti Regional Chamber of Commerce; Ronald Woods, an Eastern Michigan University professor who’s married to former Ann Arbor city councimember Wendy Woods; and Gloria Black, a representative for residents of housing commission properties.

There was little communication with the general public about the more recent leadership change at the housing commission, aside from postings on the commission’s website. The Chronicle has not observed any mention of this transition at public meetings of the Ann Arbor city council, for example. The city council’s liaison to the AAHC through this period was Tony Derezinski (Ward 2). He recently stepped down as liaison in order to serve on the city’s public art commission. Stephen Kunselman (Ward 3), who had previously served as council liaison to AAHC, publicly offered to replace Derezinski, but mayor John Hieftje instead nominated Margie Teall (Ward 4) to that position, instead of Kunselman.

The June 2011 AAHC board minutes record that Novak had tendered her resignation by that commission meeting, with AAHC deputy director Nick Coquillard appointed as interim at the July 2011 AAHC board meeting. The job opening was posted in August, and four candidates were selected to be interviewed: Coquillard; Damon Duncan, a housing consultant who previously worked at the Detroit Housing Commission; Jennifer L. Hall, housing manager for the Washtenaw County/city of Ann Arbor office of community development; and Bill Ward of the Detroit Housing Commission.

Interviews for the four candidates were held on Friday afternoon, Oct. 7, in a public meeting. The Chronicle requested resumés and other application materials for the candidates, but was informed that the information would be released only in response to a Freedom of Information Act request. That request has been filed. Update: Oct. 21, 2011 application materials were provided to The Chronicle. [.pdf of AAHC applicant materials]

Hiring Process: Open Meetings Act

At the start of Wednesday’s special meeting of the housing commission board, Ronald Woods asked whether the state’s Open Meetings Act allowed commissioners to hold any of their discussion in a closed session. In his experience, discussions in closed session result in a degree of frankness that’s not possible in public. It’s not about being secretive, he said, but rather about sensitivity toward the candidates. He also wondered whether confidentiality would be extended to the candidates’ references.

Kevin McDonald of the city attorney’s office told the board that there are only a narrow set of circumstances that would allow the commission to enter into a closed session. It might be uncomfortable, he said, but the candidate names have been disclosed and the hiring process for this position is public. It’s one of only four such positions in the city that has this kind of public hiring process, he noted. Others include the city administrator, city attorney, and executive director of the Ann Arbor Downtown Development Authority.

The purpose of the Open Meetings Act is to open up this kind of process to the public, McDonald said. He told commissioners they just needed to accept it and move forward, even if it’s uncomfortable.

Initial Preferences: Hall Emerges as Lead Candidate

Marta Manildi, who serves as president of the board, proposed taking a straw poll to see where commissioners fell in terms of their initial preferences. She began by saying her first choice would be Jennifer L. Hall, followed by Bill Ward.

Chronicle file photo of Jennifer L. Hall, taken at a 2010 meeting of the Washtenaw Urban County executive committee.

Andy LaBarre also picked Hall has his No. 1 choice, followed by Damon Duncan.

Leigh Greden said his initial assessment was based on breadth of experience, supervisory experience, staff input and the candidate’s local knowledge. For him, Hall came in first, followed by Ward.

Gloria Black also chose Hall as her first choice, then Duncan.

Ronald Woods was the only commissioner who did not select Hall for either of this top two candidates. His first choice was Duncan, followed by Ward.

Commissioners then elaborated on their preferences.

LaBarre described Nick Coquillard, the housing commission’s interim director, as a tremendous asset, and said that he would best serve the organization in his position as deputy director. Ward was impressive, LaBarre said, with great technical knowledge – he’d be a great problem-solver, but not the kind of person to lead the organization.

Duncan gave a terrific presentation, with a strong vision for the housing commission, LaBarre said, but it needed more specifics. Finally, Hall – his first choice – combined the best qualities of the other candidates, LaBarre said, including technical knowledge and leadership. What tipped it for him, though, was her knowledge of the local community, who the players are, and a sense that she’d be able to quickly jump-start the ability of the housing commission to secure new funding.

Woods spoke next, noting that Duncan – his No. 1 candidate – had a strong track record on redevelopment issues and finding alternative funding streams. Duncan is also extremely well-versed in HUD operations, he said, with a diversity of experience in virtually all aspects of public housing. Woods believes that Duncan would be able to develop strong relationships with critical partners, and that he has the vision to take the housing commission to the next level. He has the capacity to develop the Ann Arbor housing commission into one of the exemplary public housing systems in the state, Woods said.

Ward has many of the same qualities as Duncan, Woods said, and he’d also be a strong leader. Coquillard and Hall would be capable, he added. In Coquillard’s case, there would be some growth needed in executive leadership skills. For Hall, her learning curve about public housing issues would be steeper, Woods said.

Manildi began by saying they didn’t have a bad choice – it was comforting to know that any of the four candidates would do a good job. She agreed with the strengths that other commissioners had cited for the candidates, and said she started by looking at her reservations about them. One concern is that Ward, while extremely capable, didn’t articulate a clear long-term vision, especially as compared to Duncan and Hall.

Regarding Duncan, Manildi said her concern is more intuitive. Staff reaction toward him was mixed, as was hers. His forward-looking view seemed too general and philosophical, not grounded in concrete things that the housing commission must deal with. The other question Manildi had related to Duncan’s leadership style, and whether it would be a good fit for the organization. During his interview, she recalled, he’d made a comment that the hierarchy of the staff needs to be respected. To her, that seemed to indicate a view that differs from the organization’s team-building approach. On the other hand, she allowed, it might indicate a good management style. But these concerns caused her to rank Ward above Duncan.

As for Hall, it’s true that she doesn’t know the regulatory framework in rich detail, Manildi said. But she has enough surrounding knowledge and personal capacity that would allow her to fill in the gaps quickly. Hall also had a good manner, Manildi said, and a tremendous amount of useful knowledge.

Greden said he agreed with what everyone had said. He noted that he worked with Hall for many years – Greden is a former Ann Arbor city councilmember – and his experiences were very positive with her work. The housing commission staff and people who spoke during public commentary at the interviews also were positive toward Hall, he said. She’s extremely passionate about affordable housing. She has a vision, and in the past he’s seen her execute her visions time and again.

Greden said that Hall shares the housing commission’s model for client services, its team approach, and its style of working directly with residents of public housing. One concern is that she doesn’t have as much public housing experience. But she does have a lot of HUD experience, Greden said. He didn’t believe that the previous executive director, Marge Novak, had a lot of public housing experience, either. Yet Novak was wonderful, he said. Hall’s other attributes can overcome that lack of experience. Another positive attribute is that she’s local, Greden said. She knows people in the county and city, knows the properties, and knows staff. She’d hit the ground running, he said.

As for his second choice, Greden said he struggled between Ward or Duncan. Staff input caused him to give Ward the edge.

Ann Arbor housing commissioner Gloria Black.

Gloria Black praised all four candidates. Coquillard has dedication and drive. Ward has lots of experience with HUD and public housing. Duncan gave a spot-on presentation, and forced Black out of her comfort zone to look in a different direction – moving away from HUD toward other funding sources. But she questioned his commitment, saying it’s not clear if he’s in it for the long haul.

Hall doesn’t have a lot of HUD public housing experience, Black said, but maybe that’s a good thing. It will be important to make finding non-HUD funding a priority, she said.

Returning to Black’s point about Duncan being in it for the long haul, LaBarre recalled that during the interviews each candidate was asked a question to gauge their long-term commitment to the housing commission. Hall gave the best answer, in his view – she wants to retire from the position. That’s good for the stability of the organization, and other candidates weren’t so firm and definitive.

No doubt Hall would be a capable administrator, Woods replied. His comments are not about being negative toward her, he said. But he challenged his fellow commissioners to separate their familiarity with her, and to place all candidates on an equal plane. They need to look at her as if she’s coming from the outside, just like the other candidates.

As for Hall’s willingness to retire from the position, it might indicate stability and commitment, but you could also look at it as a statement about her eagerness to meet new challenges, he said. Woods again expressed concern about the public setting in which they were discussing these candidates, saying that some things aren’t negatives but might be perceived that way.

Woods felt that Ward and Duncan were equal in terms of staff responses – both had positive and negative comments.

Initial Preferences: Leadership, Vision

Much of the discussion at Wednesday’s meeting focused on leadership styles, and candidates’ vision for the housing commission.

Woods responded to comments from other commissioners about Duncan’s lack of specifics in his interview presentation. To Woods, Duncan seemed like he could be a transformative leader. Based on Duncan’s experience in the public housing sector, he used his presentation to elevate above specifics, Woods said. Woods understood Duncan to be saying that if the housing commission didn’t have a transformative vision for its future, it would never achieve dramatic change.

The other candidates didn’t strike Woods as having that same kind of vision and leadership. And he acknowledged that transformative leaders can get into trouble – not that Duncan would, he added. But often members of an organization aren’t interested in change initially, and it can be difficult to deal with that.

On the issue of Duncan’s description of staff hierarchy, Woods saw that as a positive – he was talking about delegating responsibility.

Black agreed in part with Woods’ assessment. She said she didn’t know any of the candidates personally, so she didn’t view Hall as an insider. What she liked about Hall was her “humanness.” While Duncan comes across as extremely powerful, knowledgeable and a visionary, Black wasn’t sure that fit with the housing commission’s customer-service focus.

Duncan’s presentation was sophisticated, but that wasn’t necessarily a positive. Hall, on the other hand, was ready to admit when she didn’t know something, Black said. That’s what an executive should be – someone who doesn’t walk in thinking they know it all, but who’s willing to grow and learn, she said.

As for Ward, Black didn’t find him genuine and she questioned his commitment to the housing commission. It seemed like he was just looking for a job closer to his home, she said. That gave her some reservations.

Manildi responded by saying that she was satisfied that all four candidates would be committed to the work. Ward had noted that he’s worked for seven years to get the Detroit housing commission out of receivership, and she could understand why he’s ready for a change. [Ward has served as director of compliance for the Detroit housing commission.]

However, this discussion was leading her to reconsider her second-choice preference, Manildi said, switching it from Ward to Duncan. She agreed that the housing commission needs someone with vision, and she liked Woods’ characterization of transformative vision. The board has chafed at the constraints of the housing commission’s dependence on HUD, she noted, but it will be years before they can move away from that funding. In the meantime, they’ll need to continue to work with that agency.

Duncan was impressive and able to clearly articulate a vision for the housing commission, Manildi said. But Hall also had a vision, though it was expressed in a quiet way. Hall was able to move back and forth between concrete details and her vision for the future, which suggested to Manildi that Hall has the ability to keep her eye on the long-term goals while engaging in the day-to-day details necessary to reach those goals.

Members of the Ann Arbor housing commission board: Marta Manildi and Leigh Greden.

Manildi wanted to hear from other commissioners about management styles for the candidates. She noted that when she first started her service on the board, the commission was at the end of a period with “terrible problems,” in no small part because of staffing issues related to low morale, poor organization and bad relationships between staff and residents – lots of management-level problems.

After Marge Novak was hired as director and Nick Coquillard as deputy director, Manildi said, there had been a huge improvement. There’s been a building-up of approach and process, she said, and a sense of cohesiveness and teamwork. Her sense was that this environment would be a natural fit for Hall, and that Hall would immediately begin to work well with staff. ”I have concerns about whether Mr. Duncan can do that,” she said.

Manildi acknowledged that she had known Hall previously – the two were in a Leadership Ann Arbor class years ago – and Manildi had a favorable impression of Hall. But she hasn’t worked with Hall, and felt that she’d have the same kind of favorable impressions of Hall even if they hadn’t met prior to the interview. Manildi also didn’t feel it was a bad thing to bring previous knowledge of a person to bear on the decision. She cited Marge Novak as an example – the board knows Novak well, and based on that, they’d likely hire her again if she applied.

LaBarre said he felt that Hall had a solid vision for the housing commission, though it might have been overshadowed by Duncan’s strong vision for bolder action and change. LaBarre said he hated to use dumb analogies, but he felt Duncan presented the chance for a home run, while Hall was more of a solid double. She’d be a strong and safe choice, he said, while Duncan was bolder and more of a chance for greater change. LaBarre said he wasn’t sure if the housing commission at this point needs something big and bold, which also presents a risk if it doesn’t succeed. He’s inclined to err on the side of strong and certain.

Black noted that she’s not familiar with baseball.

Public Commentary

Public commentary is typically held at the start and conclusion of each meeting. But midway through Wednesday’s meeting, a staff member – noting that she needed to return to work – asked if she could address the board. At that request, Marta Manildi, the board’s president, opened the meeting to public commentary.

Three people spoke during public commentary. Weneshia Brand, Section 8 housing manager, noted that she had met with each of the four candidates, and they were all very good – she was glad she didn’t have to make the hiring decision. From the staff’s perspective, it’s very difficult to support a new manager who doesn’t have public housing experience, she said. It means that the staff has to provide a lot of education and take on more responsibilities. Without specifying anyone by name, Brand said she’d lean toward a candidate with public housing experience or who has the skill to come in and quickly educate themselves. Specifically, the staff doesn’t have the experience to support a director in making grant applications, she noted – that’s a factor.

Another staff member addressed the board, saying that if staff could make their comments anonymously, they’d be more candid. She said she wouldn’t feel comfortable giving her opinion in front of her co-workers.

Suzette Leininger told commissioners that her preferences were for Hall and Duncan. Hall made her feel very comfortable, Leininger said, and if there was a problem, it seemed that Hall would be confident enough to handle it.

Public Commentary: Commissioner Response

Several commissioners responded to the public comments. Black said she gleaned from Brand’s remarks that the new executive director will need to multi-task, and that staff will need support to step outside the box in pursuing a vision for the housing commission. But they will still need to operate with HUD’s rules and regulations, she noted.

LaBarre said he’d like to get more staff input, especially since it seemed that the board wouldn’t be making a decision at the current meeting. Manildi wondered if there was a way for staff to speak confidentially to the board about the candidates, rather than the anonymous comments that had been collected so far.

Woods felt that staff had sufficient opportunity for input – they could always contact human resources if they had additional comments, he said. Greden agreed with that observation. Black wondered why the staff couldn’t simply send commissioners written commentary.

Kevin McDonald of the city attorney’s office said that if the board wanted additional staff input, he could work with the human resources staff to figure out a way to get it. He wasn’t sure at this point exactly how to do it, but they could work on it before the board’s next meeting.

Manildi said she’d leave it up to the attorneys to decide on a method, but she wanted to extend the time to get staff comments. This didn’t imply that the board will defer to staff, she noted. But staff have a distinct and, in some ways, better-informed perspective, and it was important to get their input, Manildi said.

Next Steps

Initially the board seemed inclined to narrow the candidate list to two: Duncan and Hall. But commissioners ultimately decided to include Ward among the finalists as well, based in large part on his public housing experience, in light of Brand’s public commentary.

Manildi floated the possibility of scheduling another special meeting to continue their discussion. But the consensus was to add the item to the agenda for the board’s next regular meeting, on Wednesday, Oct. 19. That meeting begins at 6 p.m. at Baker Commons, 106 Packard (the corner of Packard and Main). Baker Commons is one of the housing commission’s properties.

Sharie Sell of the city’s human resources department said she could check references on the three finalists and report back to the board. She will also work on collecting more staff input.

It’s possible – but not certain – that the board will make a final decision at that Oct. 19 meeting. The meeting is open to the public and will include opportunities for public commentary.

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