Stories indexed with the term ‘Michigan Open Meetings Act’

County Takes Action on Budget, Tax Levies

Washtenaw County board of commissioners meeting (Aug. 6, 2014): County commissioners took initial votes to levy two taxes that would generate revenues for economic development, agricultural projects, and support of indigent veterans.

Washtenaw County board of commissioners, The Ann Arbor Chronicle

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. [Full Story]

Column: DDA Pay Increases, Open Meetings

Earlier this month, Ann Arbor Downtown Development Authority executive director Susan Pollay received a 5% raise from the DDA board. That brought her annual compensation to $114,570.

Excerpt from 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 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. [Full Story]

Deja Vu: Special Meeting, Planning Session

The annual budget planning session of the Ann Arbor city council will start sometime after 4 p.m. on Monday, Dec. 9 in the jury assembly room of the Justice Center adjoining city hall. The uncertain actual start time of the planning session is due to a special meeting of the council that has now been called to start at 4 p.m. in city council chambers.

City administrator Steve Powers, Jane Lumm (Ward 2)

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. [Full Story]

Rules Change Delayed, But Public Comment OK’d

The Ann Arbor city council has postponed a vote on changes to its internal rules until its Sept. 16 meeting. The council’s action came at its Sept. 3, 2013 meeting. However, as part of its decision to postpone the vote, the council indicated that it will in some sense enact one of the proposed rules changes in advance of a vote on all of them – by providing an opportunity for public comment at its Sept. 9 work session.

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 … [Full Story]

AADL Branch to Get Infrastructure Upgrade

Ann Arbor District Library board meeting (June 17, 2013): In a meeting held at the Traverwood branch, library trustees approved a contract to upgrade the Internet infrastructure for another branch – the Pittsfield location.

Jan Barney Newman, Josie Parker, Ann Arbor District Library, The Ann Arbor Chronicle

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. [Full Story]

County Board Wrangles Over Budget Process

Washtenaw County board of commissioners meeting (May 1, 2013): The location and accessibility of a planned May 16 budget retreat drew some heated rhetoric from commissioner Ronnie Peterson, who argued strongly for all budget-related meetings to be held in the main county boardroom and to be televised, as the board’s regular meetings are.

Dan Smith, Washtenaw County board of commissioners, The Ann Arbor Chronicle

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. [Full Story]

Column: Making Sunshine with FOIA

National Sunshine Week started yesterday. That’s not a celebration of daylight saving time, which started the same day. But the two could be connected. Yesterday’s annual conversion to daylight saving time is supposed to give everyone some extra literal sunshine toward the end of the day. Sunshine Week is an occasion to remind ourselves of the extra figurative sunshine in our governance – ensured in many states through legislation enacted in the 1970s.

FOIA Sunshine Law

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. [Full Story]

UM Regents Call April 2 Special Meeting

The University of Michigan board of regents has called a special meeting for Monday, April 2, 2012 in the boardroom of the Fleming administration building, 503 Thompson St. in Ann Arbor. The announcement was emailed to media on Saturday morning, March 31. No topic for the meeting was identified.

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 … [Full Story]

GSRA Bill: UM Regents Debate Opposition

University of Michigan board of regents special meeting (Feb. 21, 2012): The board and UM president Mary Sue Coleman met via conference call on Tuesday morning in a brief but contentious meeting that focused on Senate Bill 971. It’s a bill that would make explicit that graduate student research assistants (GSRAs) are not entitled to collective bargaining rights under Michigan’s Act 336 of 1947.

Sue Scarnecchia

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.  [Full Story]

Finalists Selected for Housing Director

At a special meeting on Wednesday, Oct. 12, 2011, board members of the Ann Arbor housing commission deliberated on four finalists for the job of executive director. The position would oversee the city’s public housing and Section 8 programs, at a time of uncertain federal funding and increasing need. Board president Marta Manildi described it as perhaps the most important decision the board will make.

Andy LaBarre, Ronald Woods

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. [Full Story]

Ward Changes Paused, No Recycling Pay Hike

Ann Arbor city council meeting (July 5, 2011): Baked into the council’s post-Independence Day meeting was a fundamentally democratic theme: voting.

Larry Kestenbaum

Washtenaw County clerk Larry Kestenbaum was on hand to distribute a written statement encouraging the Ann Arbor city council to wait until after the general election to change the city's ward boundaries. (Photos by the writer.)

It began with public commentary on the topic of a proposed redrawing of the boundaries for the city’s five wards. The city charter requires the wards to be pie-shaped wedges. The redrawing of the lines themselves was not thought to be particularly controversial. But the timing of the redistricting stirred a representative of the American Civil Liberties Union to appear before the council to address councilmembers. Attorney John Shea, speaking for the ACLU, told them they shouldn’t enact boundary changes between the primary and the general elections. Ultimately, the council kneaded the advice into their thinking, and voted to postpone the whole question of redistricting.

The meeting ended with a voting snafu, when the council tried to convene a closed session to discuss land acquisition. So even though the vote was 6-3 in favor of entering into a closed session, a 2/3 majority of members present did not satisfy the statutory requirement of a 2/3 majority of the council’s 11 members. The vote was eventually recognized as only half-baked, and the council came out of their workroom, revoted 8-1 to re-enter the closed session, and completed the meeting without further complications.

Part of the meeting’s creamy dessert filling also depended on a somewhat infrequent parliamentary exercise that resulted in revoting an item that the council had approved two weeks earlier. That vote was on a contract for the reconstruction and relocation of water, sanitary sewer and stormwater lines in the vicinity of the proposed site for the Fuller Road Station. Mike Anglin (Ward 5) brought the resolution back for reconsideration, and council members voted unanimously to roll out the dough again by rediscussing and revoting the issue. The outcome was the same – it was approved – but Anglin registered his dissent this time by voting against it. He told his colleagues that when they’d voted two weeks ago, he had not realized that the project was related to the Fuller Road Station site.

Also part of the council’s meeting was a significant vote that received no discussion by the council. A proposal to voluntarily increase an already-approved contract with Recycle Ann Arbor was voted down 5-4, thus failing by one vote to achieve the six-vote majority it required.

The council also wrapped up a loose end from its previous approval of ordinances related to zoning and licensing of medical marijuana, by approving a non-disclosure policy. The policy ensures that private information of patients and caregivers is not divulged.

In an item added late to the agenda, councilmembers also approved a one-year contract with the city’s deputy police chiefs union.

In other business, the council set a new design review board fee at $500. It also approved three water-related projects: a porous pavement project in the Burns Park neighborhood, a rain garden on Kingsley Street, and a level-of-service study of the city’s water system.

The council also received a presentation from the director of the Ann Arbor District Library, Josie Parker. Highlights included data on the more than 600,000 annual visitors to the library’s downtown location. [Full Story]

Ann Arbor Faces Possible Budget Delay

At an Ann Arbor city council work session held May 9, 2011, mayor John Hieftje raised the possibility that the council’s approval of the city’s budget could be delayed this year. According to the city charter, the city administrator’s proposed budget must be adopted with any amendments no later than the council’s second meeting in May. Hieftje suggested that the council’s second meeting in May, which is now scheduled to start on May 16, might be recessed and continued until the last Friday of the month (May 27).

The additional time would allow for greater clarity on an issue related to the tax increment finance (TIF) capture for the Ann Arbor Downtown Development Authority. The city brought to light last week … [Full Story]

Column: Lawsuit Aftermath – 6 Months Clean

At a Jan. 18, 2011 hearing, the 22nd Circuit Court judge Melinda Morris entertained two motions by the city of Ann Arbor in response to a lawsuit filed by The Ann Arbor Chronicle.

The lawsuit alleged that during a July 19, 2010 session held by the city council, the council had violated the Michigan Open Meetings Act – by voting to enter into a closed session to discuss written attorney-client privileged communication, but instead straying from that narrow purpose to reach a public policy decision about medical marijuana businesses.

It’s uncontroversial that the council did make a decision in an open session on Aug. 5, 2010 to develop an ordinance that would ensconce medical marijuana businesses in local zoning regulations, by first establishing a moratorium on establishing additional medical marijuana businesses. What The Chronicle essentially alleged was that the Aug. 5 decision to develop local legislation on medical marijuana businesses had already been determined at the July 19 closed session.

The first motion by the city of Ann Arbor was rejected by Judge Morris. The city had asked her to find that The Chronicle’s suit was frivolous, not managing even to state a claim, and further asked that sanctions and fines be imposed.

However, on the city’s second motion – which asked Morris to find that there was insufficient evidence of an OMA violation to warrant subjecting councilmembers and the city attorney to depositions, and that she should dismiss the claim – Morris ruled in favor of the city of Ann Arbor.

In reaching the conclusion that additional discovery of facts should not be allowed, Morris appeared to give significant weight to councilmember depositions affidavits, which they all signed, asserting that they had voted to go into the closed session on July 19, 2010 in part to discuss a May 28, 2010 legal advice memo written by the city attorney, Stephen Postema. All the affidavits further asserted that the council had not made any decision during the July 19 closed session. Morris also appeared to give significant weight to the idea that even if an OMA violation occurred on July 19, then it would have been “cured” by the council’s deliberations and decision made during their open session at the Aug. 5, 2010 meeting.

In this report, we will review some points of legal interpretation on which we disagree with Judge Morris, including the significance of a surprising omission in the affidavits signed by the city attorney and the mayor.

But we begin with the observation that since being served The Chronicle’s lawsuit six months ago – about a closed session conducted on the claimed basis of attorney-client privilege – the city council has not held a single closed session of that kind. That’s easily the longest closed-session-free span the council has achieved for attorney-client privileged-based sessions in more than two years.

That seems to reflect an implicit acknowledgment by the city attorney and the council that they’d been holding more of these kinds of closed sessions than were actually warranted. We gave serious consideration to filing an appeal in this case. The council’s apparent change in behavior has convinced us that our decision not to allocate additional financial resources to an appeal was the right one. Part of our goal was to rectify a specific pattern of inappropriate behavior on the council’s part, and we appear to have achieved that.

Compared to the possibility of establishing new case law on a specific point, we think a more general approach to reform of the Michigan Open Meetings Act and the Freedom of Information Act, through legislative efforts, is likely to yield stronger and longer-lasting improvements in these open government laws. [Full Story]

County Board Modifies Annual Calendar

The Washtenaw County board of commissioners, at their March 2, 2011 meeting, approved a revised annual calendar that eliminates all future administrative briefings from the board’s meeting schedule. The decision to eliminate the administrative briefings – informal meetings which have been held the week prior to the board’s regular meetings, to review the upcoming agenda – was made at their final briefing on Feb. 26. Some commissioners, most notably Ronnie Peterson, have objected to the briefings, saying they are too far out of the public eye – even though they conform to the Open Meetings Act.

This brief was filed from the county board of commissioners meeting at the Washtenaw County administration building. A more detailed report will follow. [Full Story]

Washtenaw County Treasurer Updates Board

Washtenaw County board of commissioners meeting (Feb. 16, 2011): The county board’s four-hour meeting on Wednesday evening was punctuated by a heated debate about whether some of their meetings are sufficiently in the public eye.

Bill Reynolds, Catherine McClary

Washtenaw County treasurer Catherine McClary, right, talks with deputy county administrator Bill Reynolds before the start of the Feb. 16, 2011 board of commissioners meeting. McClary delivered her annual treasurer's report during the meeting. (Photos by the writer.)

Ronnie Peterson started that debate by advocating for holding the board’s budget retreats and administrative briefings at the boardroom table, where they can be televised. The meetings are open to the public, but are more informal and not available on Community Television Network or online webcasts. The ensuing discussion revealed different perspectives on what kind of environments are most conducive to deliberations. At one point, board chair Conan Smith – who opposed a change of venue – argued that deliberations aren’t subject to the state’s Open Meetings Act. The county’s attorney, Curtis Hedger, advised the board that, in fact, deliberations do need to occur in open meetings, with limited exceptions allowed in closed sessions.

After roughly 90 minutes of debate, the board voted – with Smith dissenting – to hold future budget retreats in the boardroom following their bi-weekly working sessions. The retreats will be televised. An effort to relocate and televise administrative briefings failed, however, with support only from Peterson, Kristin Judge and Wes Prater.

In other business, the board appointed three staff members to a review committee that’s part of a new coordinated effort for funding human services nonprofits in the county. During a presentation by Mary Jo Callan – head of the office of community development, which is overseeing this process – Peterson expressed concern that smaller, community-based nonprofits will be unable to compete in this new system. Callan assured him that she understood his concerns, but felt that this new model could actually be better for those nonprofits. She noted that the board would ultimately control funding decisions for county dollars.

Catherine McClary, the county treasurer, delivered her annual treasurer’s report, giving an update on the county’s investment portfolio, delinquent taxes and foreclosures. She reported that the amount of residential tax foreclosures appears to be stabilizing, but foreclosures of commercial property are on the rise, especially for parcels of vacant, undeveloped land. Separately, the board approved the treasurer’s annual request to borrow funds – up to $50 million this year – to temporarily cover delinquent taxes in the county’s 80 taxing jurisdictions. Last year, there was about $29 million in delinquent taxes, and McClary expects a small increase this year.

McClary also told commissioners that later this year she’ll be asking them to approve a civil infractions ordinance for dog licenses, as part of a stepped-up enforcement effort. Right now, not having a license is a criminal misdemeanor of 90 days in jail or a $500 fine.

During Wednesday’s meeting commissioners also delivered several liaison reports, including news that the Washtenaw County Parks & Recreation Commission had approved $600,000 for the Connecting Communities trail program. Part of those funds will support a project that will eventually link Saline and Ann Arbor through a non-motorized pathway. The commission also authorized $250,000 to build a boathouse and fishing dock at Ford Lake, in partnership with the state and Eastern Michigan University. [Full Story]

Column: Dear Historic District Commission

Dear members of the Ann Arbor Historic District Commission,

On behalf of The Ann Arbor Chronicle, I’m writing to encourage to you to take a specific step to help guarantee future public access to all of your meetings. This step would serve to make sure the deliberations and decisions of the HDC are fully open, transparent, and documentable by third parties like The Chronicle – as part of the independent public record of our city’s governance.

What prompts us to write is a recent occasion when HDC deliberations on an important decision, and the vote itself, were inadvertently shielded from public view.

The decision related to the Glen Ann Place project, located in the city’s Old Fourth Ward historic district. In 2007, the developer of the project and the city signed a consent agreement, in order to settle a lawsuit that had been filed against the city, when the HDC declined to give Glen Ann Place its approval.

On Nov. 30, 2010, the HDC convened a special meeting to consider extending the agreement. The Chronicle was aware that the special meeting would be taking place, pending the scheduling of a time when all HDC members could attend. And we had taken measures to ensure that we would be notified of the special meeting’s scheduling – some of those options are outlined in a recent column by’s lead blogger, Ed Vielmetti.

But despite our best active efforts, we did not find out about the special meeting time until after it had taken place. The outcome, we later learned, was a 5-2 vote in favor of the extension. We were not able to find out about the scheduled meeting time, because the city did not follow its own policies and procedures that are in place to ensure public access to meetings, and to ensure compliance with the Michigan Open Meetings Act (OMA). The conclusion of our analysis is that the failure of the city to conform to its noticing requirements impaired the public’s rights under the act.

Of course, a court might not agree with us. Indeed, we’ve had recent experience challenging – with no success, at least initially – what we believe is a separate OMA violation, by the Ann Arbor city council. But on Wednesday last week, Judge Melinda Morris ruled that even though we had stated a claim, there was insufficient evidence filed in our initial complaint even to warrant further collection of evidence.

The situation with the Glen Ann Place special meeting does not have the same ramifications as the city council case that prompted our lawsuit, which we think likely involves problematic patterns and practice. The Glen Ann special meeting situation was clearly that – special and likely unique.

But in this case, we believe the HDC has the opportunity to undertake voluntarily a specific initiative that could serve as a model of openness and transparency for other boards and commissions of the city. [Full Story]

Column: Upholding the Open Meetings Act

On Friday, Sept. 17, 2010, The Ann Arbor Chronicle filed suit against the city of Ann Arbor alleging that a violation of the Michigan Open Meetings Act occurred on July 19. The allegations are based in part on remarks made by councilmember Stephen Rapundalo during open session of the Aug. 5 city council meeting – remarks that referred to the July 19 closed session. The subject of both the open and closed session discussions was medical marijuana.

We don’t take this decision lightly, and in this column we lay out the circumstances that led us to file this lawsuit. Our decision was prompted by more than this one clear violation. More broadly, we’re concerned about a culture of closed city government that goes beyond a laxity about conformance with the state’s Open Meetings Act and Freedom of Information Act.

This culture isn’t uniform – many city staff and elected officials are committed to doing the public’s work in public view. However, the prevailing culture is one of closed government – in which city officials assume that they can do their work in a way that’s shielded from public view. It’s a culture we’ve observed in the thousands of hours we’ve spent covering city council and other city commissions and committees over the past two years.

We believe the culture of closed government that exists in the city of Ann Arbor will not change until a lawsuit is filed and won – and that’s why we’ve chosen to litigate.

We’re being represented by East Lansing attorney Jeffrey Hank of Hank Law PLLC, who also believes this is an important case: “Open and transparent government is important for a multitude of reasons. In this case, advocating for open government on behalf of a citizen-based news organization, which is covering the reawakening of our liberty as it relates to marijuana prohibition in one of Michigan’s greatest intellectual cities, is as American as apple pie. This case is the perfect nexus of what our society needs to reinvigorate our democratic spirit.” [Full Story]

AAPS Search Firm Choice: Down to Two

Ann Arbor Public Schools Board of Education search firm interviews (Sept. 22, 2010): The Ann Arbor Public Schools (AAPS) school board has narrowed its short list of potential consultants to help with its superintendent search to two firms: Ray & Associates Inc. of Cedar Rapids, Iowa, and McPherson & Jacobson LLC of Omaha, Nebraska. Both firms have significant expertise in conducting national superintendent searches.

During a seven-hour meeting held at the Balas Administration Building, the board discussed selection criteria, set their interview process, interviewed five firms, and decided to check the references of two of them. A theme that emerged throughout the day was the challenge of conducting a search in an “open state” such as Michigan, where candidates’ names will be made public early in the process as a requirement of the Open Meetings Act.

The board is expected to make a final selection at its regular board meeting on Wednesday, Sept. 29. The search firm will be seeking a replacement for outgoing superintendent Todd Roberts, who announced his departure in mid-August. AAPS deputy superintendent Robert Allen was recently selected to serve as interim superintendent when Roberts leaves within the next two weeks. [Full Story]

Column: Open Meetings and Marijuana

During the Ann Arbor city council’s Aug. 5, 2010 deliberations on a medical marijuana moratorium, councilmember Stephen Rapundalo (Ward 2) described how the council had discussed the issue and given the city attorney a directive to draft a moratorium so that it could be brought to that evening’s meeting. Later that night, Rapundalo told The Chronicle he’d been referring to a discussion that took place during a closed session on July 19.

If accurate, Rapundalo’s original comments seem to describe a violation of the Michigan Open Meetings Act, which does not allow the council to develop legislative strategy and public policy in closed session. During council’s meeting on Tuesday, Sept. 7, Rapundalo said he may have “misrepresented” the activities of the closed session with his earlier comments, rejecting the labels “discussion” and “directive” – but still allowing that a councilmember had told the city attorney that they wanted to see legislation drafted to come before the council.

Rapundalo’s comments, even taken together with remarks made by the city attorney at the council’s Sept. 7 meeting, still leave many questions unanswered. [Full Story]

Ann Arbor’s Budget Data to Go Online

Ann Arbor City Council Budget Committee (Jan. 19, 2010): Sometime within the next two months, Ann Arbor city councilmembers and Ann Arbor residents – or anyone, for that matter – can expect to start getting access to raw data files of all city financial transactions.

Budget Committee Posting

Posting of the budget committee's Tuesday meeting.

At a meeting of the Ann Arbor city council’s budget committee, the city’s chief financial officer, Tom Crawford, sketched a plan to start making available a wide range of raw data from the city, starting with numbers from the finance department. Crawford said he hopes to have a pilot in place by the end of February.

Budget committee members also discussed what the contents of a monthly statement should be that will now be provided to the committee and to the council as a body – such a report is required by the city’s charter.

The other main point addressed by the budget committee was raised by city administrator Roger Fraser, who suggested to councilmembers that they owed it to the community to put the question of a city income tax before the voters. Fraser said they had a responsibility to float the question, regardless of what their personal feelings were on the issue.

The meeting was also attended by Mayor John Hieftje, who is a member of the city council, but no longer part of the 5-member budget committee – the council reorganized its committee structure at its Dec. 21, 2009 meeting. Hieftje participated in deliberations on the question of when a city income tax ballot question might feasibly go on the ballot. [Full Story]

Column: When’s an Open Meeting Open?

At its Sept. 21 meeting, the Ann Arbor city council voted to attach to the official meeting minutes any emails sent to and from its members during its future meetings. The rationale for this move – as reflected in the whereas clause of the resolution – was to “help the public monitor compliance with the amended rules.”

What amended rules? At its previous meeting on Sept. 8, the council had amended its rules to restrict emails sent by its members during meetings to two kinds: (i) messages to city staff, and (ii) messages to other councilmembers that propose language for resolutions or amendments to resolutions. No restrictions were put in place on reading emails received during city council meetings.

In adopting the Sept. 21 resolution – but at the same time rejecting a proposal to release council meeting emails dating back to 2002 – councilmembers emphasized the need to look to the future and not dwell on the past.

However, the rule changes, together with the resolution passed on Sept. 21, suggest that Ann Arbor’s city council has fundamentally failed to give adequate thought to the future of open government in Ann Arbor. Instead, we appear to be moving into the future in a way that formally ensconces a flawed understanding of the letter and spirit of the Open Meetings Act. [Full Story]

AATA Announces Two Finalists

Left to right: Sue McCormick, Jesse Bernstein (speaker phone), Paul Agjegba, Rich Robben.

Left to right: AATA board members Sue McCormick, Jesse Bernstein (speaker phone), Paul Ajegba, Rich Robben. They met Friday morning as the search committee for AATA's executive director.

“Good morning, everybody!” came the voice over the speakerphone. Executive assistant Karen Wheeler, of the Ann Arbor Transportation Authority, had just dialed up board member Jesse Bernstein so that he could participate in the executive director search committee meeting Friday morning at AATA headquarters on South Industrial.

Bernstein, along with other committee members Sue McCormick, Paul Ajegba and Rich Robben, met to formally vote on forwarding to the full board the names of two final candidates for the executive directorship of the AATA. The Chronicle previously reported that the number of candidates has been winnowed down to five. That position has been open since Greg Cook’s resignation in early 2007. [Full Story]