Streetlight locations are mapped in the joint Washtenaw County and city of Ann Arbor GIS system. Data available by clicking on icons includes ownership as well as the lighting technology used. Green indicates city ownership. Red indicates DTE ownership.

How? At its May 7 meeting, the board voted to postpone until June 4 a resolution authorizing a $101,733 payment to DTE to convert 212 non-LED streetlights in downtown Ann Arbor to LED technology. But the resolution did not appear on the board’s June 4 agenda.

Instead of voting on the previous month’s resolution – to approve it, reject it, postpone it again or table it – the board listened to an update from executive director Susan Pollay. Pollay told board members that they should assume that the issue is tabled – but possibly not permanently. That decision to table the resolution appears to have been made between board meetings.

The DDA board’s inaction on the funding means that the downtown LED conversion won’t happen in this year’s cycle – because the deadline to apply for a project this year is June 30. So for this year’s program, the city’s energy office will ask the city council – at its June 16 meeting – to authorize money to fund a different project that converts some lights outside the downtown. DTE does not necessarily offer the conversion program every year.

A decision on expending funds is an effectuation of public policy – thus a “decision” under Michigan’s OMA. Even though the decision by the DDA on the streetlight conversion allocation had the practical impact of not expending funds, that should still be analyzed as an effectuation of public policy. And that public policy decision appears to have taken place between board meetings, which is a violation of the core requirement of Michigan’s OMA: “All decisions of a public body shall be made at a meeting open to the public.”

As a practical matter, the only consequence of a court’s finding that the DDA violated the OMA would be to invalidate the DDA’s decision not to expend funds. Why bother to drag the DDA board into court over that? Invalidation of the decision not to expend funds would not force the DDA to go ahead and spend the funds. It would leave things exactly as they are now.

A more economical and time-effective way to address this specific issue would be for DDA board members to publicly recognize and acknowledge their commitment to abide by the OMA – by simply taking a vote on the LED conversion resolution from May 7 at their next meeting, on July 2. It’s surely just as important as the board’s scheduled social gathering at Bill’s Beer Garden on that same day.

That’s also the day when the DDA board’s annual meeting takes place. The annual meeting is when new board officers are elected and committees are appointed. So the annual meeting this year could be an occasion for the DDA to flip a switch, and light itself up with civic tech better than any LED. It would be a chance to re-establish itself as a public body that is committed to rigorous governance – based on strict adherence to its bylaws and the state statute that enables the existence of the DDA.

Presented below are some recommendations for specific actions the DDA board should consider, starting at its annual meeting. The recommended actions would provide an agenda for board work that needs to be done in the coming year.

Here’s a summary of those recommendations: establish strong committees; strictly follow the board bylaws or else change them; consult the archives; and create a development plan that meets state statutory criteria.

Establish Strong Committees

Many governing bodies establish committees to handle some of their work. One example of a public body with a reasonably well-functioning committee structure is the Ann Arbor Area Transportation Authority board of directors. The minutes of two standing AAATA board committees – with a record of votes by those committees to recommend resolutions to the full board for consideration – are part of board meeting information packets.

By comparison, the DDA’s committees are not as rigorous in their adherence to basic principles of governance.

Strong Committees: Current DDA Bylaws, Custom

DDA board bylaws describe one specific committee – the executive committee – which consists of the board chair, vice chair, treasurer and recording secretary. The most recent former board chair and the executive director are non-voting members of the executive committee.

The bylaws further describe other committees in terms of two types – board committees and advisory committees. Board committees are constrained in their membership to DDA board members. Advisory committees are not constrained in that way. The DDA currently has one board committee and one advisory committee – the operations committee and the partnerships committee, respectively.

The bylaws highlight the importance of the board’s committees like this:

As the work of the DDA is done primarily through Committee, it is expected that each Board member will actively serve on at least one committee, and will attend a minimum of 70% of the committee’s meetings per year as a condition of remaining on the DDA Board.

Based on the bylaws, one example of the work that is supposed to be done by committees is to make recommendations on funding requests for consideration by the full board:

Section 10 – Requests for Funding. The Board may not act upon a request for funding unless the request has been referred to a committee of the Board for review and recommendation. In the event that a committee has not made a recommendation to the Board within 60 days from the time that the request was first presented to the Board, the Board may, by majority vote, bring the proposal to the Board for consideration without benefit of the committee recommendation.

The committee vetting process described in Section 10 of the bylaws does not appear to have been followed at all for the May 7, 2014 streetlight conversion funding resolution. But it’s somewhat difficult to say for sure: It’s possible that the executive committee, which met just before the full board meeting on May 7, explicitly discussed and achieved a consensus that the streetlight conversion resolution should be recommended to the board for consideration. From the minutes of the May 7 executive committee meeting:

Committee actions and discussions
Other. Review of the board meeting agenda for the May 7, 2014 meeting.

The fact that no vote is recorded in the minutes doesn’t preclude the possibility that a consensus was achieved that the item should appear on the agenda. Indeed, based on minutes of DDA operations committee and partnerships committee meetings – as well as my own attendance at some of these meetings over the last half decade – the custom of DDA committees is not to express their recommendations in the form of votes. That leaves any action by a DDA committee subject to interpretation.

On the positive side, the minutes of the May 7, 2014 executive committee meeting reflect 100% attendance. So if committee members had been inclined to take a vote, they could have done so – because they clearly achieved a quorum. That’s not been the case for some recent meetings of DDA committees.

By way of background, the board’s bylaws set forth the definition of a quorum for committees:

A majority of the committee will constitute a quorum. A majority of the members present at the meeting at which a quorum is present shall be the action of the committee.

The minutes of the April 30, 2014 operations committee meeting show exactly half of the committee members present – thus not a quorum. In attendance at the meeting, according to the minutes, were: Robert Guenzel, Roger Hewitt, Joan Lowenstein, John Mouat, Keith Orr and John Splitt. Yet, according to the minutes of the meeting, the committee made a decision – to have the board vote at its next regular meeting, on May 7, to establish a project budget of $5 million for the Fourth & William parking garage renovation. From the April 30 committee meeting minutes [emphasis added]:

4th & William stair/elevator replacement. Mike Ortlieb, Josh Rozeboom, Carl Luckenbach presented design images. It was decided that a project approval resolution would be brought to the DDA. …

How did the operations committee wind up making a decision on that occasion without a quorum being present? Did operations committee members consciously flout a basic rule of governance? I think that’s pretty unlikely. Instead, I think two different factors may have contributed to the committee’s failure to adhere to rigorous standards of governance.

First, because DDA committees by custom don’t follow rigorous procedural requirements – like taking votes – it’s easy to lose sight of the fact that the meeting is not just a chat among friends at a social club, but rather a business meeting. So it’s easy to overlook basic considerations associated with a business meeting – like whether the committee even has a quorum for conducting business.

Second, when six out of 12 board members are present, that might feel intuitively like there’s surely a sufficient number of members for a committee to conduct business. But for the last couple of years, the result of the annual meeting committee appointments has been to appoint all DDA board members to both the operations and partnerships committees. That means that either of those committees needs at least seven members to conduct business. Why have all DDA board members been appointed to both committees in recent years? I think it’s because the board has lacked the leadership of a chair who is willing and capable of selecting only some board members for appointment to some committees and not for others.

An additional wrinkle for the partnerships committee membership is that it includes two members of the city council – appointed by the council – currently Margie Teall (Ward 4) and Jane Lumm (Ward 2). Based on its minutes, the DDA partnerships committee also appears to include other non-DDA board members as well, for example Charles Griffith, AAATA board chair, and Jason Morgan, director of government relations for Washtenaw Community College. It certainly makes sense for those two to be members of the partnerships committee – because both of the entities they represent have some of their taxes captured by the DDA.

But it’s not clear that the procedure in the DDA bylaws was followed to add those two people to the committee: “The chair shall select, with the advice and consent of the board members, the members of each advisory committee.” The DDA board has not, as far as I can tell, ever voted to admit Griffith or Morgan as members of the partnerships committee. It would be better to have documented the path to membership, in case anyone asks: How did Charles Griffith and Jason Morgan become members of the DDA partnerships committee? And why isn’t there representation from other taxing entities – like the Ann Arbor District Library and Washtenaw County?

Further, it’s hard to tell from the minutes who is actually a member of the partnerships committee. DDA board members who are absent are recorded as absent. But the custom for documenting non-DDA members who are absent seems to be not to mention them at all. The April 9, 2014 DDA partnerships committee minutes don’t mention Lumm, for example, when it seems like she should have been recorded as absent.

Knowing exactly who is a member of the partnerships committee is important for determining whether a quorum is present for conducting committee business. But that’s only important if the partnerships committee is conceived as an entity that conducts business – as opposed to serving as a casual social gathering with no actual governance function.

Strong Committees: Establish Five

At their annual meeting, set for July 2, 2014, DDA board members should elect a chair who is willing to select just a subset of DDA board members – say four to five members – who have interest and expertise to serve on the following five committees, which the board should establish.

Strong Committees: Establish a Parking Operations Committee

This “new” parking operations committee is needed in order for the DDA to develop a quantifiable understanding of how well Ann Arbor’s public parking system supports three different key user groups: (1) downtown employees; (2) retail/transactional customers and visitors; and (3) downtown residents.

In April 2014, structures generally showed less revenue per space than in the previous month. One exception was Maynard, which showed a slight increase – possibly attributable to the opening of Knight’s restaurant at Liberty & Maynard that month. The Brown block surface lot – bounded by Ashley, First, Huron and Washington Streets, continued to be the top-performing facility in the public parking system on a revenue per space basis. (Chart by The Chronicle with data from the DDA.)

The only statistics the DDA board currently requests on a routine basis from its parking subcontractor – Republic Parking – are total revenues by facility (which includes revenue from monthly permit holders) and the total number of patrons by facility who pay by the hour.

Based on that data set, it’s easy to come up with folk theories about what causes perceived patterns and trends. But it’s difficult to assess quantitatively how well the parking system supports the needs of the three user groups.

Among other information, the DDA should start asking Republic Parking to provide data by facility on the number of hours parked by monthly permit holders and the number of hours parked by patrons who pay by the hour. Further, the board should request routine reports about on-street metered parking usage, translated into hours parked, geocoded for each meter. Zipcode data from credit cards used for the on-street metered transactions should be analyzed to get some insight into the origin of motorists who park in particular areas.

This committee should also study high- and low-tech ways to help motorists find open parking spaces quicker and more efficiently.

Strong Committees: Establish a Development Plan Committee

This “new” development plan committee would focus on future capital projects using tax increment revenue as well as the maintenance of parking facilities, which should ideally tap only parking revenue. This committee is needed because the DDA does not currently have a TIF (tax increment financing) plan that meets state statutory requirements.

The state enabling legislation for DDAs includes a requirement for a development plan that lists out specific projects with estimated cost and timeframe for completion. The original Ann Arbor DDA TIF plan that was adopted in 1982 included such a development plan. But the 2003 revision to the plan replaced the development plan with a document that was vague with respect to specific projects, costs and timeframes. So this committee could expect to work through the year to draft a new development plan that meets the statutory criteria.

A 3-D model currently displayed on a table just outside the second-floor elevator landing of Ann Arbor city hall. It reflects the work of University of Michigan students in a course taught by Doug Kelbaugh, a professor of architecture and urban planning. This view is looking north, with the conceived development for the Brown block in the left of the frame.

This committee should also focus on developing packaged real estate transactions that would promote the public interest. For example, First Martin Corp. owns the Brown block, which the DDA leases to operate a surface parking lot. If the DDA would like to see that parcel developed into something more interesting than a surface parking lot, then a step in the right direction would be to stop leasing the lot from First Martin and accept the loss of those spaces in the public parking system.

A different First Martin property should be considered by the DDA as a possible purchase: the surface parking lot behind the Michigan Square building next to Liberty Plaza. Public ownership of that parcel would mean public control of the diagonal connection from the corner of Liberty and Division (Liberty Plaza) across to the Library Lane lot and South Fifth Avenue. Whatever the future of the Library Lane lot is, public control of the diagonal connection would increase the chances of success.

Strong Committees: Establish a Budget/Finance Committee

This “new” budget/finance committee would provide oversight and review of regular financial transactions and budgeting. One long-term challenge that this committee needs to confront are payments the DDA has obligated itself to make in support of the city’s police/courts facility, which entail roughly $500,000 in annual contributions through 2038. That’s five years past the life of the DDA, which is currently set to expire in 2033. It’s probably too soon to contemplate whether the DDA should be extended any longer than that. But the current board should at least consider in its financial planning how to incorporate the $2.5 million obligation that will be faced in 2033, without assuming any additional TIF revenue past 2033.

On a much shorter timeframe, this committee could consider converting the DDA’s check register to a digital, database format, so that it can be posted routinely to the DDA’s website, where it could more easily be subjected to public scrutiny. Other local public entities that are supported with tax dollars – including the city of Ann Arbor, Washtenaw County and the Ann Arbor District Library – disseminates this information through routine releases to the general public.

Strong Committees: Maintain a Partnerships Committee

For the last five years, the partnerships committee has handled miscellaneous topics – essentially those that DDA board members want to work on but that don’t fit naturally into the work of the one other board committee, the operations committee.

The partnerships committee has in some ways served as the “grant committee” – responding to requests from community partners for grant support. That’s why, for example, the Ann Arbor Housing Commission’s executive director Jennifer Hall has appeared before the partnerships committee requesting funds for capital improvements to AAHC properties.

Based on the current state of its TIF plan, I don’t think the DDA is in a position to make any grants of TIF dollars – because by statute, TIF money can be spent only pursuant to the TIF plan, and the DDA TIF plan doesn’t include any specific projects with cost estimates or timeframes. More on that below. To the extent that the DDA partnerships committee receives proposals for ways to spend TIF money, those proposals should be about altering the TIF plan to include a particular project.

I think the partnerships committee should continue to exist – mainly so that the DDA has a natural mechanism by which it can keep community stakeholders up to date on the work it is doing, and receive input from obvious stakeholders about what should be in the DDA’s development plan.

Strong Committees: Establish a Bylaws Committee

This committee would review the bylaws for clarity of language.

DDA board committee structure in 1986: five committees. (Document retrieved from the University of Michigan Bentley Library, the collection of papers from former DDA board member Eunice Burns.)

In several places the bylaws refer to “the corporation” – an apparent reference to the Ann Arbor DDA. In other places, reference is made to “the Authority.” It would be best to make uniform any reference to the entity throughout the bylaws. In other places, the bylaws are antiquated: “The recording secretary or a designee shall attend all meetings of the Board and record all votes and the minutes of all proceedings in a book to be kept for that purpose.”

But the bylaws committee needs to review the current bylaws also to ensure that they enforce rigorous governance procedures – by the board and by the committees. For example, one issue that would be worth clarifying in the bylaws is how the agenda for board meetings is set.

The current bylaws state: “Any member of the board may request any item to be placed on the agenda.” Of whom is the request made? Does that person or persons have the option of declining the request? Instead of describing what board members are allowed to do, a reasonable approach would be to describe exhaustively how an item can appear on a board meeting agenda. For example, the bylaws could be revised to read:

Items can be placed on a regular DDA board meeting agenda in any of three ways:

1. through a majority vote of a DDA board or advisory committee.
2. by an individual DDA board member.
3. by the DDA executive director.

The method used to place an item on the board meeting agenda shall be specified on the agenda as follows. For committee-sponsored items, the name of the committee, the date of its vote and the voting tally placing the item on the agenda shall appear on the agenda with the item. For items sponsored by individual board members, the name of the board member sponsoring the item shall be included. For items sponsored by the executive director, the notation “Sponsored by DDA executive director” shall be included.

Follow the Bylaws, Or Change Them

According to the bylaws, it would require board action to establish new committees. That action could come at the board’s upcoming annual meeting on July 2. But who should appoint the members of the committees recommended above? If those appointments come at the annual meeting, then the short answer, according to the bylaws is: Any committee appointments should be made by current chair Sandi Smith – even after the election of a new chair.

By way of background, the prevailing DDA custom has been to elect the current vice chair to the position of chair. This year, that custom would elevate John Mouat to the position of chair. Mouat, a partner in the architectural firm of Mitchell & Mouat Architects, has served on the DDA board since first being appointed in 2007.

Regarding Mouat’s time of service on the DDA board, the city council resolution confirming Mouat’s reappointment in 2011 indicated a term ending in 2014 – this year. That would have made Mouat’s chairship contingent on being reappointed by the city council. But the term end date was an apparent mistake, because DDA board member terms are by statute supposed to last four years, not three.

Councilmember Stephen Kunselman has worked over the last month to push the city attorney’s office and clerk’s office for clarification of DDA board member term end dates. And as part of that effort, Kunselman retrieved some old DDA records from the early 1980s, held as part of the University of Michigan Bentley Library’s collection of papers from Eunice Burns, a former DDA board member and former city councilmember. Kunselman told me in a June 9 interview that he has not yet shared with the attorney’s office what he found in the archives. However, the city’s online Legistar records now show corrected term dates for five different DDA board members.

Mouat’s corrected current term ends in 2015. So if Mouat is elected chair, he would not be at the same risk that Gary Boren was in 2011. Boren was elected DDA board chair in July 2011, but then was not reappointed to the DDA board that year by mayor John Hieftje when his term expired – which meant that his service as chair of the DDA board lasted about one month.

In addition to electing the current vice chair to be the new chair, another custom of the DDA board’s annual meeting is for the newly elected chair immediately to assume office, appoint the membership of committees and to name the chairs of those committees. From the July 3, 2013 annual meeting minutes:

Ms. [Leah] Gunn ceremonially passed the meeting gavel to Ms. [Sandi] Smith. … Ms. Smith reviewed the members and chairs of the Operations Committee. Mr. [Roger] Hewitt, Mr. [John] Splitt & Mr. [Keith] Orr will serve as committee chairs, the remainder of the DDA board members will serve on the committee. … Ms. Smith reviewed the members and chairs of the Partnerships/ Economic Development Committee. Ms. Smith and Ms. [Joan] Lowenstein will serve as committee chairs, the remainder of the DDA board members will serve on the committee. …

That custom flouts the DDA board bylaws in two ways.

First, the board chair has the right to appoint the chair of the operations committee – because it is a board committee. However, an advisory committee like the partnerships committee is supposed to elect its own chair, according to the bylaws: “The advisory committees shall elect their own officers and establish rules governing their actions.”

Second, even though the annual meeting is an occasion for election of board officers, including the chair, the bylaws are explicit about the fact that the newly elected chair does not actually become chair until the end of the meeting: “The term of office shall be for one year and begin at the close of the annual meeting at which they are elected.”

So the July 2, 2014 meeting would be a good occasion for the DDA board to just follow the bylaws with regard to these two points. Assuming the existing committee structure, current board chair Sandi Smith should name any committee members she would like to appoint to the operations and partnerships committees and name a chair of the operations committee. But the partnerships committee should be left to elect its own chair.

If that process does not suit the board, then the board is free to change its bylaws – which is an argument for establishing a bylaws committee.

Consult the Archives

Stephen Kunselman’s visit to the Bentley Library was prompted by his interest in establishing the correct term end dates for DDA board members. In somewhat more detail, when the DDA was first established, the 12 members were supposed to have staggered term lengths. Under the statute, an equal number of members (3) were to have had one-year terms, two-year terms, three-year terms and four-year terms. After the initial appointments, all the terms are supposed to be four years long. The effect of the initial staggering is that in any given year, the board would potentially have a maximum of three new members join the board.

But Kunselman found more than just records showing board membership.

Leafing through the Bentley’s collection of Eunice Burns’ papers, Kunselman also noticed some old budget documents, which would have been relevant to an issue that was finally settled in November 2013 – the question of how the DDA’s TIF capture is regulated. The council finally concluded that nine-month debate about the DDA’s TIF capture on Nov. 18, 2013 – by revising the existing ordinance regulating DDA TIF to remove some of the perceived ambiguity.

The point of controversy involved the TIF plan projections of growth for the tax-increment value in the DDA district. In its original form, enacted when the DDA was founded in 1982, here’s how a key clause of the ordinance read [emphasis added]:

If the captured assessed valuation derived from new construction, and increase in value of property newly constructed or existing property improved subsequent thereto, grows at a rate faster than that anticipated in the tax increment plan, at least 50% of such additional amounts shall be divided among the taxing units in relation to their proportion of the current tax levies. …[.pdf of Ann Arbor city ordinance establishing DDA]

The life of the DDA’s tax increment finance capture would have ended after 30 years – in 2012. But in 2003, a new TIF plan was established with a new 30-year life. In the new plan, the projected annual percentage increase in value of the increment on which the DDA captures taxes was lower than in the original TIF plan.

The applicability of the ordinance to the DDA’s tax capture since 2003 was pointed out in 2011 by the city treasurer in an email he sent to DDA staff [emphasis added]:

It is a bit ambiguous, but I think the intent is that the DDA should not get any more tax revenue than was anticipated by the plan. From 1982 to 2002, the original plan had very high estimates of capture, and so this clause was far from being triggered. In the new plan, the estimates were reduced significantly. From 2003 until now, the capture has exceeded the plan. … We have had preliminary consultation with the attorney’s office, but have yet to obtain an opinion as to whether our interpretation is correct. [.pdf of Horning's May 2, 2011 email]

I think the city treasurer’s characterization – that the clause in question had never before been triggered – was widely accepted as plausible and true. But based on my own review of documents among Eunice Burns’ papers, it now looks to me like the clause was triggered in the very first year of the DDA’s existence, as well as in subsequent years.

DDA FY 1984 draft budget summary from University of Michigan Bentley Library collection of paper contributed by Eunice Burns.

The projected valuation of the increment in the original TIF plan for the first year was $2,000,000. But a fiscal year 1984 draft budget put the actual expected valuation of the increment that first year at $2,957,000, which exceeded the projected amount by $957,000. The draft budget calculated a return to the other units from which the DDA captured taxes exactly as specified in the city ordinance – half the excess times the millage rate on which the DDA captured taxes. More precisely: ($957,000*0.5)*0.006 = $28,710. (The draft budget appears to incorporate an arithmetic error, and gives an amount $30 less than that.)

Based on subsequent documents, the actual valuation that first year turned out to be less than the value expected when the budget document was prepared.

The actual valuation of the increment was $2,154,000 – which was less than expected in the draft budget, but still $154,000 more than anticipated in the TIF plan. A 1986 document from Burns’ archived papers show that the total amount of excess TIF returned to the other governmental units that first year was $3,629.

How did the DDA arrive at the $3,629 figure? I don’t know. In previously published columns on this topic, I’ve laid out the difference between a year-to-year approach and a cumulative approach to calculating the excess. But both methods yield $4,549 – which is more than a rounding error off from $3,629.

April 21, 1986 past valuations of increment with projections. In the first year, 1984, the valuation of the increment was $2,154,000 – which was less than expected in the draft budget, but still $154,000 more than anticipated in the TIF plan.

Further, the same 1986 document calculates a return of TIF revenue to other taxing units in 1987, 1988, 1989 and 1990 – but neither the cumulative nor the year-to-year method would indicate that any return was due.

The key here might be the column heading [emphasis added]: “Payments to Taxing Units Per Agreement.” Unless there was some other “agreement” between the taxing authorities, it would have been more natural to use the word “ordinance.” So that indicates the taxing authorities came to some agreement that superseded the ordinance. My initial foray into the Bentley archives didn’t turn up such an agreement.

If there was such an agreement, it could have conceivably been prompted over a dispute about how to interpret the so-called “debt clause” in the original TIF ordinance: “Tax funds that are paid to the downtown development authority due to the captured assessed value shall first be used to pay the required amounts into the bond and interest redemption funds and the required reserves thereto.”

The more recent wrangling between the city council and the DDA definitely featured a contention by the DDA that the “debt clause” should be interpreted to mean that so long as the DDA’s debt obligations exceeded TIF revenues, no TIF should be returned to the other taxing units. But as the documents from the Bentley archive make clear, back in the early years of the DDA, the debt obligations of the DDA were planned to exceed TIF revenues. It’s not clear from initial examination of the documents whether there’s evidence that the DDA paid excess TIF to other units in years when debt obligations exceeded TIF revenue.

A logical next step in pursuing this issue would be to look for the “agreement” to which the 1986 document’s column heading refers.

Develop a Development Plan

In describing the development plan committee that I think the DDA board should establish, I wrote above: “This committee is needed because the DDA does not currently have a TIF plan that meets statutory requirements.”

I want to explain that claim in more detail.

Downtown development authorities in Michigan do not levy taxes of their own, but rather “capture” taxes levied by other entities within a specific geographic area – the TIF district. The “increment” in a tax increment finance (TIF) district refers to the difference between the initial value of a property and the value of a property after development. The Ann Arbor DDA captures taxes from the city of Ann Arbor, Washtenaw County, Washtenaw Community College and the Ann Arbor District Library.

The state’s DDA statute makes clear that the tax increment financing plan is not optional. More specifically, it makes clear that no TIF revenue can be expended except to the extent that the expenditure is made pursuant to the tax increment financing plan. From the statute [emphasis added]:

125.1665 Transmitting and expending tax increments revenues; reversion of surplus funds; abolition of tax increment financing plan; conditions; annual report on status of tax increment financing account; contents; publication.
Sec. 15. (1) The municipal and county treasurers shall transmit to the authority tax increment revenues.
(2) The authority shall expend the tax increment revenues received for the development program only pursuant to the tax increment financing plan. …

The statute also lays out in explicit detail the components of the required tax increment financing plan. The required components of a tax increment financing plan include a development plan [emphasis added]:

125.1664 Tax increment financing plan; preparation and contents; limitation; public hearing; fiscal and economic implications; recommendations; agreements; modification of plan; catalyst development project.
Sec. 14. (1) When the authority determines that it is necessary for the achievement of the purposes of this act, the authority shall prepare and submit a tax increment financing plan to the governing body of the municipality. The plan shall include a development plan as provided in section 17, a detailed explanation of the tax increment procedure, the maximum amount of bonded indebtedness to be incurred, and the duration of the program, and shall be in compliance with section 15. …

And finally, the statute lays out in detail the required components of a development plan. The statute makes clear that the development plan is more than a set of guidelines, parameters and goals. From the statutory requirements, it’s clear that the development plan is meant to include a set of projects that can be described with enough specificity to identify a specific location, cost, and construction phasing – all of which is required to be included in the development plan [emphasis added]:

125.1667 Development plan; preparation; contents; improvements related to qualified facility.
Sec. 17. (1) When a board decides to finance a project in the downtown district by the use of revenue bonds as authorized in section 13 or tax increment financing as authorized in sections 14, 15, and 16, it shall prepare a development plan.
(2) The development plan shall contain all of the following:
(a) The designation of boundaries of the development area in relation to highways, streets, streams, or otherwise.
(b) The location and extent of existing streets and other public facilities within the development area, shall designate the location, character, and extent of the categories of public and private land uses then existing and proposed for the development area, including residential, recreational, commercial, industrial, educational, and other uses, and shall include a legal description of the development area.
(c) A description of existing improvements in the development area to be demolished, repaired, or altered, a description of any repairs and alterations, and an estimate of the time required for completion.
(d) The location, extent, character, and estimated cost of the improvements including rehabilitation contemplated for the development area and an estimate of the time required for completion.
(e) A statement of the construction or stages of construction planned, and the estimated time of completion of each stage.
…

The Ann Arbor Downtown Development Authority tax increment financing plan, modified in 2003, does include many of the required components of a development plan as specified in Sec. 17 (2). However, by any objective standard, some of those components are completely absent. Among those absent components are those described in Sec. 17 (2)(c), Sec. 17 (2)(d), and Sec. 17 (2)(e).

Excerpt from the development plan in the 1982 DDA TIF plan.

The Ann Arbor DDA’s 2003 tax increment financing plan includes a development plan that identifies eight general strategic areas for investment: identity, infrastructure, transportation, business encouragement, housing, development partnerships, community services, sustainability. These strategies and principles are outlined in a fair amount of detail, but nowhere with enough specificity to determine an exact location, cost estimate, or construction timeline explicitly required in the statute.

There is a sharp contrast between the tax increment financing plan that was originally adopted in 1982 and the revised 2003 plan. The 1982 plan includes a development plan that appears to have been drafted using the statute as a literal outline. [.pdf of 2003 renewal plan] [.pdf of original 1982 plan]

The lack of a statutorily compliant development plan has put the Ann Arbor DDA at a disadvantage over the last year in the politically-charged wrangling with the Ann Arbor city council. That wrangling grew out of the pursuit of a non-political issue raised by the city treasurer in 2011 – enforcement of the city’s ordinance that regulates DDA TIF capture.

By 2013, a majority on the council began to take an interest in seeing the TIF capture ordinance strictly enforced. The DDA’s initial response was to raise the specter of projects that the DDA would not be able to undertake – if the TIF ordinance were enforced in the way some councilmembers were suggesting. Pressed for examples, the initial response from the DDA appeared to be limited to a single specific project – the replacement of rusted-out streetlight poles on Main Street.

Subsequently, the DDA scrambled to compile a five-year plan of projects – a draft that the DDA board has since continued to revise over the past year. [.pdf of DDA 5-year capital plan as of May 2014] But the DDA board has not yet ratified that list of projects in a formal way. One formal way to ratify that five-year project list would be to incorporate it into the development plan component of the TIF plan.

An approach to the topic of the development plan from the perspective of the Downtown Area Citizens Advisory Council – a body that can be established to give input on the development plan to the DDA – is included in a comment I wrote earlier this year on a DDA board meeting report: [March 7, 2014 comment]

I imagine that some DDA board members will perceive the call for a statutorily-compliant development plan as mere pedantry – or else as a way to heap gratuitous criticism on the DDA. But in fact, a statutorily-compliant development plan could serve as a shield against unwelcome attempts to exert control by a city council eager to see the DDA pay for projects the DDA might not want to support. If the city council wants the DDA to pay for a project that the DDA does not want to fund, then this response should end the conversation:

We’re very sorry but that’s not a project included in our development plan and we cannot violate the statutory requirement that TIF expenditures be made pursuant to that plan.

With a compliant development plan to back its play, the DDA could have used that argument to avoid committing TIF funds for the police/courts facility back in 2008, or the Main Street light pole conversion project in 2013.

In the same way, the streetlight LED conversion project that the DDA board was asked to fund at its May 7 meeting – the resolution that ultimately prompted this column – could have been rejected just on the grounds that the project does not appear in the DDA’s development plan.

Instead, the argument made by board member Roger Hewitt was really just a complaint – that funding the streetlight conversion amounted to another instance of making a transfer payment to the city of Ann Arbor. That’s because the energy savings from the LED conversion would accrue to the city’s bottom line, not the DDA’s.

In its current state, however, I think the DDA’s “development plan” would preclude any TIF expenditure – because there are no specific projects listed with budgets or timelines.

In sum, I think the DDA’s independence as a governmental unit depends on its willingness to be fettered by the statutory requirements enabling its existence.

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Government should not be like an open sewer, but it should be open.

Fact: In local government, it doesn’t get any sexier than sanitary sewers.

The study’s full name is the sanitary sewer wet weather evaluation (SSWWE). As background reading, in preparation for next Thursday’s meeting, readers might find it useful to immerse themselves in this recent Chronicle report: “Backups: Lawyers, Sewers, Pumps.” That report is centered on a Jan. 9, 2014 meeting of the city’s citizens advisory committee (SSWWE-CAC) associated with the study.

But this column does not dwell on the substance of either the Jan. 9 or the Feb. 6 meetings. Instead, it focuses on the nature of meetings and expectations of Ann Arbor residents for local governmental activity: Government shouldn’t be like an open sewer, but it should be open.

First, meetings that are accessible to the public – like the one earlier this month or the one next Thursday – are a part of the fundamental standard set by Ann Arbor residents for the function of our local government. Ann Arbor residents don’t consider the convening of a publicly accessible meeting, with data and information available beforehand, to be some kind of bonus, value-added feature of our local governance. It’s just axiomatic.

Of course, Ann Arbor residents don’t have a monopoly in Michigan on an expectation of open government. Two state statutes ensconce a statewide commitment to open government – the Open Meetings Act (OMA) and the Freedom of Information Act (FOIA). From the OMA: “All meetings of a public body shall be open to the public and shall be held in a place available to the general public.”

But a group like the SSWWE-CAC is not, strictly speaking, a “public body” as defined in the statute. So in Ann Arbor, we take the OMA a step further. By longstanding city policy established through a city council resolution passed in 1991, even advisory groups like the SSWWE-CAC are expected (to the best of their abilities) to conduct their meetings in accordance with the OMA.

I’ve written a lot about this topic in the past, and don’t really have much to add now.

What prompted me to write this column, more as a reminder than anything else, was seeing a note sent to SSWWE-CAC members via Basecamp – a piece of project management software that allows group collaboration and communication. The note was sent by one of the city’s outside consultants for the sanitary sewer wet weather evaluation – Charlie Fleetham of Project Innovations.

Fleetham’s note included the following statement about the Basecamp site that’s been set up for the SSWWE-CAC: “… I believe that the CAC is and would be well served by having a site [Basecamp] to discuss this very complex and emotional issue without fear of public scrutiny.”

While I think that Fleetham’s sentiment was likely well-intended, public scrutiny is part of what Ann Arbor residents sign up for when they serve on one of the city’s citizens committees. This kind of service makes a resident a participant in a quintessential governmental function. As such, that service should be and will be subjected to public scrutiny.

City Policy on Open Meetings

The city’s policy on various committees, commissions, boards and task forces was established through a city council resolution, passed on Nov. 4, 1991:

R-642-11-91 Resolution Regarding Open Meetings For City Committees, Commissions, Boards And Task Forces
Whereas, The City Council desires that all meetings of City boards, task forces, commissions and committees conform to the spirit of the Open Meetings Act;
Resolved, That all City boards, task forces, commissions, committees and their subcommittees hold their meetings open to the public to the best of their abilities in the spirit of Section 3 of the Open Meetings Act; and
Resolved, That closed meetings of such bodies be held only under situations where a closed meeting would be authorized in the spirit of the Open Meetings Act.

The idea of the resolution is this: Even entities to which the OMA would not technically apply are still expected to conform to the spirit of Section 3 of the OMA – to the best ability of that entity’s members. Section 3 includes a provision that allows a person to address a meeting of a public body.

The first meeting of the SSWWE-CAC took place on Aug. 21, 2013. The time for public commentary was provided at the end of the meeting. But on that occasion, facilitator Charlie Fleetham indicated to the members of the CAC that they were free to leave the meeting before the public commentary started. And a few CAC members did leave before members of the public addressed the CAC.

Subsequent CAC meetings attended by The Chronicle have, fortunately, not included an invitation to members to depart before the public commentary started.

Just as members of the CAC should not be shielded from the responsibility of listening to what the public has to say, the public should not, as suggested by Fleetham, be shielded from conversations among CAC members. Here’s Fleetham’s side of some communications obtained by The Chronicle:

From: Charlie Fleetham
Date: Fri, 17 Jan 2014 at 2:23pm
Please find attached a draft copy of the FDD Survey report.
Until the CAC has reviewed this report, it is DRAFT and should not be distributed outside of the CAC. We want to gather your input/requests before finalizing and distributing.
Please provide your input before Wednesday, January 22th …

Charlie Fleetham Fri, 24 Jan at 11:22am
Regarding the question of whether or not BaseCamp is subject to FOIA, per a conversation with Abigail Elias, as a private website, BaseCamp is not subject to FOIA provisions.
…

Charlie Fleetham Fri, 24 Jan at 2:06pm
I believe that BaseCamp needs to be off limits to FOIA requests. It provides a venue for the CAC to express their opinions without fears about legal actions/scrutiny etc.
…

Charlie Fleetham Fri, 24 Jan at 8:27pm
The question that was asked was whether or not the BaseCamp is subject to FOIA. According to Abigail [Elias, city of Ann Arbor assistant city attorney] it is not, and that is what I reported. I also said that I believe that the CAC is and would be well served by having a site to discuss this very complex and emotional issue without fear of public scrutiny.
…

Charlie Fleetham Sat, 25 Jan at 6:18pm
Regarding keeping information secret, no one on the project team has ever suggested keeping project data away from the public or using BaseCamp to conceal information. However, I believe it is appropriate to all folks to review draft reports before distribution to the public. That said, Lori and I scanned the project library last week, identified some documents that needed to be uploaded and the City has done so. (Note – we need to correct the year date for the Jan 9 meeting and note that the video covers the last 90 minutes only – we will do this on Monday.)
…

What’s the OMA issue here? If Basecamp is used as proposed by Fleetham, then Basecamp is a venue to conduct what are functionally meetings of the CAC – which are, according to Fleetham, explicitly intended to escape public scrutiny. Because Basecamp is protected by password, the meetings of the CAC that take place in the forum of Basecamp are, in fact, inaccessible to the public. They’re also not noticed to the public as to when they take place. But it appears that there’s a standing, ongoing meeting of the CAC that’s taking place on Basecamp.

In any event, inviting CAC members to share their opinions on Basecamp, shielded from public view, is problematic with respect to the 1991 city policy on the OMA – in at least two ways. First, these meetings are inaccessible to the public when the meetings happen. Second, there’s no opportunity for a member of the public to address the CAC on Basecamp during such meetings.

Basecamp: Freedom of Information

If the 1991 city policy on the OMA is flouted by the use of Basecamp to facilitate closed meetings of the CAC, how does this practice stack up against Michigan’s Freedom of Information Act (FOIA)?

The answer is already included in the communications above: Records held by a private entity are not subject to required disclosure under Michigan’s FOIA.

This technique for shielding records from public access is one familiar to the city’s history of citizen participation in matters related to sanitary sewers and footing drain disconnection. The Feb. 24, 2001 meeting minutes of  Ann Arbor’s sanitary sewer overflow (SSO) prevention task force reflect a conscious choice to use private contractors to hold raw data, so that the data couldn’t be obtained through Michigan’s FOIA:

Raw data will be held by CDM or sub-contractor to prevent anyone from obtaining data under the Freedom of Information Act. [.pdf of Feb. 24, 2001 minutes of the SSO task force]

While the city appears to be on solid legal ground if it were to deny a request for information on the Basecamp site set up for the SSWWE-CAC, I don’t think that would be a good idea. This approach fuels a perception that information that belongs to the public is being withheld from the public. It’s not in the spirit of Michigan’s FOIA to use the statute as a legal guide to keeping public information out of the public’s hands.

We certainly have a legitimate interest that documents still in draft form not be represented to the public as if they were final documents. For example, the initial draft of the survey results to be discussed at the Feb. 6 meeting contained some mistakes and did not include all of the survey responses. Some people were still responding to the survey when the draft was created. So it was important not to present that preliminary draft report as if it were the final version.

However, a concern about the draft nature of documents is not effectively addressed in the way that Fleetham suggests in the communications above – by circulating the drafts to committee members on Basecamp and admonishing them not to share the draft documents outside the group. If a document is a draft, it can simply be clearly designated as such through watermarking or some other digital technique. It’s not a constructive approach to ask committee members not to share the documents outside of a private website that is immune to requests made under Michigan’s FOIA.

Meetings: Coda – Feb. 6, 2014

One complaint I heard from a member of the public at the Jan. 9 meeting of the SSWWE-CAC was that the Jan. 9 meeting had not been posted anywhere on the city’s website. In fact, the meeting had been included in the city of Ann Arbor’s listings of events. Those are a subset of events that are included in The Chronicle’s event listings.

Neither of those sources is perfectly exhaustive for every single meeting. But it’s worth checking those sources.

To reiterate, the next public meeting for the study of Ann Arbor’s sanitary sewer system during wet weather will take place on Thursday, Feb. 6 from 6:30-8:30 p.m. in the Slauson Middle School auditorium.

And again, here’s the link to results of a recent survey of participants in the city’s footing drain disconnection program, which will be part of the agenda. The meeting will also include an update on the study itself, which included flow measurements in the sanitary system made last year.

About the author: Dave Askins is editor and co-founder of The Ann Arbor Chronicle. The Chronicle could not survive without regular voluntary subscriptions to support our coverage of government and civic affairs. Click this link for details: Subscribe to The Chronicle. And if you’re already helping The Chronicle flush its toilet, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!

The land acquisition component of the closed session 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 press release last week. 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.

Under Ann Arbor’s city charter, a special meeting can be called on request of the mayor or by any three councilmembers. In the case of the Dec. 9 special meeting, it was Sabra Briere (Ward 1), Jane Lumm (Ward 2) and Jack Eaton (Ward 4) who signed the call for the special meeting.

The unusual 4 p.m. start time for the special meeting results from the fact that the council already had its annual budget planning work session scheduled to start at that time and to last as long as 11 p.m. The location of the budget planning session will be the jury assembly room in the Justice Center adjoining city hall. The special meeting will be held in city hall, however – under the city charter provision requiring that “Special meetings of the Council shall be held at the regular meeting place thereof …”

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.

The resolution to form a subcommittee – whose members aren’t yet identified – is an alternative to simply purchasing the property, which board member Roger Kerson described as not practical right now. Kerson chairs the AAATA’s performance monitoring and external relations committee.

The AAATA has historically been interested in the property, which is immediately south of the AAATA’s downtown Blake Transit Center. The city’s purchase of the land in 2003 followed an attempt by the AAATA to acquire and develop the parcel. The AAATA continues to envision the block as a center of transit activity.

The property was listed at $4.2 million with purchase offers due by Friday, Oct. 18. The AAATA board resolution indicates in a “whereas” clause that any offers are expected to be brought to the Ann Arbor city council’s Oct. 21 meeting. The resolution is based on the idea that the AAATA wants to establish good relations with any potential developer of the site.

The subcommittee of the board is supposed to meet with developers and take part in future negotiations.

Even though making a successful bid for the property would give the AAATA complete control, Kerson said, it’s not practical for the AAATA to make a bid at this time – as it would deplete the AAATA’s financial reserves. So instead, Kerson said, the AAATA should be proactive and engage with whomever the city selects as the successful bidder. The AAATA could make its needs known to the developer with respect to providing transit. The idea would be possibly to help the developers meet their needs and simply be a good neighbor. Kerson said it would be best to engage early, instead of waiting to review something that a developer might come up with, without the AAATA’s input. The subcommittee would actively engage that process, Kerson concluded.

The city council is exploring whether to sell that property, which is also across from the downtown Ann Arbor District Library. Earlier this year, the city selected Colliers International and local broker Jim Chaconas to handle the possible sale, as the city faces a $3.5 million balloon payment this year from the purchase loan it holds on that property. The city has owned the land for a decade.

Now a surface parking lot, the site was zoned D1 as part of the original A2D2 (Ann Arbor Discovering Downtown) zoning process. The site was also one of five parcels that was the focus of the Ann Arbor Downtown Development Authority’s Connecting William Street project, and was part of a more recent evaluation by the city’s park advisory commission as a potential downtown park.

Two months ago, at its Aug. 20, 2013 meeting, the Ann Arbor city planning commission made recommendations on the development of the former Y lot. Among others, those recommendations included: a building that generates foot traffic, provides a human scale at the ground floor and creates visual appeal; a “mixed use” development; and a building with vehicular access and parking that are accessed via the city’s new Library Lane underground parking structure.

The AAATA board resolution was approved after a closed session that lasted about an hour and a half. Land acquisition is one of the reasons that a public body can enter into a closed session under Michigan’s Open Meetings Act.

Also at its Oct. 17 meeting, the AAATA board was updated regarding progress on construction of a new transit facility at that location. Completion of the new Blake Transit Center building, located on the Fifth Avenue side of the lot, is now expected toward the end of January 2014, which is about six weeks later than originally planned. The old building, which stands on the Fourth Avenue side of the lot, was originally not planned for demolition until the new building was complete. However, because the construction schedule has slipped and AAATA staff are concerned about a hard winter arriving and stalling the demolition schedule, the AAATA is planning to demolish the old building sooner than that.

The strategy will be to use trailers as a temporary substitute for the building. Terry Black, AAATA manager of maintenance who’s supervising the construction, explained that the target date for transitioning from the old building to trailers is Oct. 28. During the week of Oct. 28, the move will be made out of the old building, and then on the weekend of Nov. 2-3 the building will be torn down.

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

The council has a work session already scheduled for that time – as a joint session with the Ann Arbor Downtown Development Authority. The topic of the joint work session will be the agreement under which the DDA manages the city’s public parking system. The session is required under terms of the parking agreement. The work session will immediately follow the council’s special meeting.  [.pdf of Sept. 9, 2013 special session notice]

Ann Arbor police department mug shots. Please note: When it comes to counting police officers or DDA board members, six of one is not half a dozen of the other. (“Art” by The Chronicle)

Stephen Kunselman (Ward 3) has been leading the effort by the council to have an impact on the DDA – first by proposing ordinance amendments, then by bringing forward a proposal during the council’s FY 2014 budget deliberations on May 20 – to reallocate DDA funds toward housing. More on that later.

Next week’s June 3 city council meeting would have marked the start of a three-month DDA-free period on the council’s agenda. However, Ward 2 councilmembers Jane Lumm and Sally Petersen, joined by Sumi Kailasapathy from Ward 1, have now placed a resolution on that meeting’s agenda calling on the DDA to allocate money for three additional police officers dedicated to patrolling the downtown area.

For Lumm, this might appear to be a course reversal. Earlier this spring she argued that funding for police officers should be found within the regular city budgeting process. She argued that police officers should be paid for with city general fund dollars – because the city is responsible for public safety. Specifically, she argued that the city should not be looking to the DDA to pay for police.

Yet it’s not actually a course reversal for Lumm. If you follow the city council and the DDA closely, her position now – calling on the DDA to fund police – makes perfectly logical sense, if “logical sense” means “political sense.”

The fact that this reversal makes perfect political sense is not an indictment of Lumm specifically, but rather of the entire 11-member council. They’ve managed as a group to forget what they accomplished together at their retreat in December 2012.

At that retreat, the council achieved a consensus that the city’s achievement of success for the public safety area would not be measured by the number of sworn officers. Instead they agreed that success would be based by actual crime stats, perceptions of safety by residents, and an objective measurement of the time that officers can spend on proactive policing. Yet the council’s debate on May 20 reverted to the familiar past habit of measuring safety success by counting sworn officers.

To the credit of the June 3 resolution’s sponsors, their proposal at least claims that adding police officers downtown would contribute to the perception of increased safety – a nod to the council’s retreat consensus. But I can imagine arguments both ways about whether that claim is true.

The council’s general distraction from its budget retreat consensus might be linked to the energy spent on the DDA. So what has stoked that interest? The fuel for this political fire is the perverse interpretation the DDA has given to Chapter 7 of the city code, which regulates the DDA’s tax increment finance (TIF) revenue. The DDA contends that the revenue constraint that’s articulated in Chapter 7 isn’t really a constraint. The DDA further contends that the $470,000 it returned to other taxing jurisdictions in 2011 was paid back “erroneously.” Kunselman’s ordinance amendments would exclude the DDA’s interpretation.

Throughout the council’s months-long debate about the DDA, the DDA board and staff have enthusiastically participated in city council politics. They’ve done so in a way that has not added much value to the city of Ann Arbor, except in the form of political drama.

In this column I’ll lay out the DDA’s role in the most recent political play that was performed at the council’s May 20 meeting.

Setting the Stage

By way of background, this year’s council focus on the DDA began on Feb. 4, when Ward 3 councilmember Stephen Kunselman announced he’d be sponsoring an amendment to the local ordinance governing the DDA. A month later, on March 4, the council had the item on its agenda. After postponing it several times, the council eventually gave the measure initial approval. But at its May 6, 2013 meeting, the Ann Arbor city council decided to postpone final consideration of that ordinance revision until Sept. 3 – after the Aug. 6 city council primary election.

However, that postponement did not keep the DDA off the city council’s agenda for the regular meeting that followed – on May 20, 2013. That’s when the council debated the FY 2014 budget. During the budget debate, a proposed change to the DDA’s budget occupied more of the council’s time than any other budget amendment. To be clear, it is the statutory role of the city council to approve the DDA’s budget. It’s not so clear that the DDA should occupy so much of the council’s time on budget night.

At that May 20 meeting, Kunselman offered an amendment to transfer money from the DDA’s TIF (tax increment finance) fund to the DDA’s housing fund. It was ultimately approved – as a kind of compromise with a competing DDA budget amendment that mayor John Hieftje had hoped to bring forward. The transfer amount agreed upon by the council was $300,000 – compared to the $500,000 Kunselman had originally wanted to transfer.

The political backdrop for this includes the fact that Kunselman faces a challenge in the August Democratic primary from Julie Grand, who currently serves on the city’s park advisory commission. She also lives on the same block of Brooklyn Avenue as Christopher Taylor (Ward 3), who’s been one of the council’s leading defenders of the DDA. Taylor was elected to the council in 2008, over then-incumbent Kunselman. But Kunselman returned to the council the following year when he received more votes than Leigh Greden.

Kunselman is also a political rival of mayor John Hieftje, who sits on the DDA board. Kunselman has stated that if Hieftje seeks re-election in 2014, then Kunselman will run to oppose Hieftje.

The sparring between Kunselman and Hieftje can be overt, with Hieftje writing to Kunselman in an email sent during the second week of May: “I understand your need to automatically oppose anything I may be in favor of …” And on May 20, Kunselman told Hieftje during the council’s meeting, “Of course, you’re not going to support anything that I bring to the table.”

Budget Amendment & DDA Special Meeting

The fact that Kunselman proposed his DDA budget amendment on May 20 was not a surprise – because he’d announced at the council’s May 6 meeting that he’d be doing that.

Three days later, on May 9, the DDA board called a special meeting – scheduled for May 13. According to the posting, the meeting was for the “purpose of discussing budget priorities and any other business that the members deem necessary.”

The DDA board had already adopted its FY 2014 and FY 2015 budgets – an action that took place at its Feb. 6, 2013 meeting.

So when the special meeting was announced, I expected there was an interest among DDA board members in using the special meeting to modify the DDA’s adopted budget. If the board took action to modify its budget – at least in the spirit of Kunselman’s planned amendment, if not in the same dollar figure – that might have blunted the effect of Kunselman’s amendment.

The argument against Kunselman’s budget amendment would have gone something like this: The DDA already transferred $X from its TIF fund into its housing fund at a special meeting of its board held on May 13 – so why are we quibbling about the difference between X and $500,000?

As it turned out, the special meeting of the DDA board on May 13 did not result in the transaction of any business. No resolutions were considered. No votes were taken. The 12-member DDA board did not even achieve a quorum of seven members. I marked the following six board members present for the May 13 special meeting: Leah Gunn, Joan Lowenstein, John Splitt, Sandi Smith, Roger Hewitt and Newcombe Clark. That’s the same as the DDA staff’s tally of attendance.

An Accounting of Events

Yet during deliberations on May 20, John Hieftje described the gathering on May 13 as a having achieved a quorum. He also described “DDA action” taken on May 13.

In fairness to Hieftje, he had to rely on information from others – because he was absent from the meeting. But he also had no political interest in questioning or confirming the accuracy of the information.

What was Hieftje’s political interest? He certainly didn’t adduce the May 13 DDA gathering as a random point of recent history. He adduced it in support of his own DDA budget amendment, which was meant to compete with Kunselman’s. Hieftje took the occasion during the meeting to point out that his own proposed amendment was based on the DDA’s May 13 “action.” For example, the dollar amount to be transferred to the DDA housing fund in Hieftje’s proposed budget amendment was $100,000. That’s the amount that the DDA had purportedly resolved on May 13 to transfer from its TIF fund to its housing fund.

So how would anyone get the idea that the DDA board had – through a vote or some kind of other consensus of a quorum of its members – taken some action, or passed a resolution to update its previously adopted budget?

The part about a quorum is likely attributable, I think, to an inadvertent miscounting of board members by DDA board chair Leah Gunn. She sent an email to city councilmembers stating that seven members had attended the May 13 meeting. With six members plus staff sitting at the table, it’s the kind of miscount that anyone could make.

Except for the miscount, Gunn’s email does not, on my reading, try to portray the meeting as more than what it was – an informal meeting where no action was taken. From Gunn’s email:

The DDA had an informal meeting last Monday to discuss the allocations to the budget considering the added TIF that will be received in the next fiscal year. Although no formal action has been taken, the attached memo describes the consensus reached by the seven members present.

However, if the phrase in Gunn’s email were read contrastively as “no formal action” had been taken, the ordinary rules of contrastive stress would open the door for Hieftje’s description. So during deliberations on May 20, he could refer to some “DDA action,” presumably an informal one. I have no idea what it means for a public body to take informal action. But grammatically, at least, it works.

Gunn’s email refers to an attached memo. It’s the attached memo, written by DDA executive director Susan Pollay, that I think actually misrepresents what happened on May 13. The subject line indicates a “budget update” when no updating of the DDA’s budget was undertaken at the meeting.

And the body of the memo indicates formal action in at least three places, when no action was actually taken:

• “At its Monday morning meeting the DDA board members resolved that …”
• “The board members authorized me to …”
• “On Monday, the DDA members resolved to set aside $75,000 …”

Even if a quorum of members had been present, then based on my own attendance at the May 13 gathering, no action was taken by those assembled. It would perhaps be fair to say that among the six board members gathered, a general consensus, along the lines described by Pollay’s memo, was apparent during the casual conversation.

Pollay was present at the May 20 council meeting and was asked to the podium to respond to questions. She was present when Hieftje characterized the May 13 DDA gathering as having achieved a quorum, and she was there when he referred to the DDA board action. She had an opportunity to correct the statements made about the May 13 meeting.

So I inquired with Pollay by email about her memo’s characterization of the May 13 gathering – given that no quorum had been achieved on that occasion. Her response was to cite an email she’d received from board member Bob Guenzel saying that he couldn’t attend the meeting, but expressing his thoughts on the budget. From Pollay’s email:

Bob Guenzel wasn’t able to attend, but had shared ideas with me via email, and I let everyone know what these ideas were so they could be included as part of the discussion and ultimately weighed before they came to some kind of consensus. Bob’s interests were to direct additional funding to housing and to funding some kind of economic development study in partnership with SPARK. 6 board members were present for the discussion, but 7 provided input into the list of priorities.

Even given this additional context, I don’t think it’s remotely reasonable to represent the gathering of DDA board members on May 13 as having resolved anything or authorized anything.

Pollay’s justification for her memo’s portrayal of the meeting appears to be based in part on the idea that the seventh board member necessary to achieve a quorum was somehow actually in attendance – by dint of the email he sent prior to the meeting.

That’s just not how you count attendance at a meeting of a public body.

As it turned out, the DDA’s non-meeting of May 13 was not sufficient as a political prop on May 20 to allow Hieftje’s proposed budget amendment to win the day. I’m curious to see how the DDA will be used as a prop in the council’s June 3 discussion of downtown police funding.

Counting Police Officers

If the Ann Arbor city council wants to abandon its consensus success statements on public safety, and return instead to the familiar routine of counting police officers, then by all means let’s get the DDA involved, as proposed in the council’s June 3 resolution.

If the DDA is involved, perhaps we could adapt the DDA’s quorum-counting approach to police staffing levels. We could count officers as on patrol even if they don’t report for duty.

But, of course, we would still insist that such officers at least send an email to their shift commander, sharing their thoughts on how to fight crime.

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Map of road work proposed by the Washtenaw County Road Commission for Ann Arbor and Ypsilanti. Other work is proposed throughout the county. The proposal asks the county board to levy a road millage to pay for the work. (Links to larger image.)

The topic emerged at a Sept. 8 working session of the county board of commissioners, which would need to authorize the millage before it could be levied. The issue was not on the agenda, and was discussed late in the meeting.

Wes Prater brought up the issue of a possible road millage during the time set aside for items for current or future discussion. He said he’d received an email indicating that the road commission planned to ask the board to levy an 0.6 mill tax, and he wanted more details. The millage, if authorized, would raise about $7 million for more than three dozen proposed road projects.

County administrator Verna McDaniel reported that she and Curtis Hedger, the county’s corporation counsel, had met with road commissioner Ken Schwartz and Roy Townsend, the road commission’s director of engineering, regarding a possible county millage. Road commissioners believe the millage could be levied under Public Act 283 of 1909. Because that act pre-dates the state’s Headlee Amendment, it could be levied by the board and would not require voter approval.

The staff and board of the road commission have been discussing this proposal at their public meetings as well as privately with elected and appointed officials throughout the county, including county commissioners. At least one of those private meetings may have violated the state’s Open Meetings Act.

It’s expected that Townsend and Schwartz – a former county commissioner, who was instrumental in finding this possible funding source – plan to make a presentation at the county board’s Sept. 21 meeting. The county currently levies two other taxes in this pre-Headlee category, though they are for considerably smaller amounts: (1) 0.05 mills to support economic development and agriculture; and (2) 0.025 mills to support services for indigent veterans. Both were also put forward by Schwartz when he served on the county board. A final vote on renewal of those two millages will occur at the Sept. 21 meeting.

McDaniel said she asked Hedger to seek advice on the road tax from the state’s attorney general. The county needs to look at the statute carefully, she said, to determine what the board’s rights are.

Road Commission: Some Background

The county road commission is a public entity, funded primarily through Public Act 51 gas taxes and vehicle registration fees. Its 2011 budget is about $16.5 million, and employs about 130 workers. In Washtenaw County, the road commission is responsible for maintaining all the public roads outside of cities and villages, which pay for their own street repair and construction. In Ann Arbor, for example, voters will be asked in November to renew a five-year street repair millage of 2.0 mills.

In addition to handling repair and reconstruction for about 1,650 miles of roads, the road commission maintains more than 100 bridges and 1,000 culverts in the county. It also has a contract with the Michigan Dept. of Transportation to handle maintenance for 580 lane miles of state “trunkline” roads that run through the county, including Washtenaw and Michigan avenues. During winter months, road commission workers handle snow removal, salting and sanding on county roads and state trunklines.

The road commission has its own governing board of three commissioners. Currently, road commissioners are Doug Fuller (chair), Fred Veigel (vice chair) and Ken Schwartz. The county board of commissioners appoints the road commissioners, but has no authority over the road commission’s budget or activities.

But county commissioners in the past have attempted to address what they saw as problems with the road commission, including a lack of responsiveness and overly-weighted representation from the eastern side of the county. In early 2010, Jeff Irwin – who served a decade as county commissioner for District 11 in Ann Arbor before being elected as state representative in November 2010 – pushed to expand the number of members on the road commission. The board began that process by setting a public hearing for possible expansion, after vigorous debate. The hearing was held in June 2010. After another lengthy and sometimes heated discussion, the board majority voted to end the process, with dissent from Irwin and Conan Smith.

Road Millage: Public Act 283 of 1909

At their Aug. 16, 2011 meeting, road commissioners passed a resolution approving the 2012 Road Improvement Plan “consistent with Public Act 283 of 1909″ and authorizing the county highway engineer to present the plan to the Washtenaw County board of commissioners for consideration. [.pdf of the relevant section from Act 283. The document includes a summary written by Lew Kidder of Scio Township, who refers to the section as "one long, James Joyceian paragraph."]

The road improvement plan outlines 41 projects that could be paid for with millage funds. [.pdf of proposed projects] The list includes:

• Ann Arbor-Saline Road, from Eisenhower to eastbound I-94
• Ann Arbor-Saline Road, from Waters/Lohr to Eisenhower
• Ellsworth, from State Street to I-94
• Huron River Drive, from Bird to Foster
• Miller Road, from Maple to Newport
• Scio Church Road, from Wagner to I-94

The Aug. 16 resolution did not explicitly refer to a millage. However, the minutes of the Aug. 16, 2011 road commission working session – held prior to the regular meeting – indicate that the topic of a millage was discussed:

Commissioner [Ken] Schwartz stated that he had discussions with several County Commissioners and county representatives that seemed to be supportive of this proposed millage plan. The [Road Commission] Board was in agreement that Roy Townsend and Commissioner Ken Schwartz should present this plan to the County Board in September.

Schwartz was appointed to the three-member road commission by the county board of commissioners in December 2010, after he lost a November 2010 re-election bid in District 2 to Republican Dan Smith. While on the county board, Schwartz was instrumental in identifying two other pre-Headlee statutes. Among its many provisions, the Headlee Amendment requires voter approval of local government tax increases that weren’t authorized before November 1978, when Headlee was adopted.

Because of those two pre-Headlee statutes, the county board now levies taxes in support of: (1) economic development and agriculture (Act 88); and (2) services for indigent veterans (Indigent Veterans Relief Act). Those millages, which also do not require a vote by the public, received initial approval at the county board’s Sept. 7, 2011 meeting. A vote for final authorization will be taken on Sept. 21. If given final approval, the millages would be levied in December 2011.

Road Millage: County Board Discussion

At the Sept. 8 county board working session, Rob Turner – the board’s liaison to the road commission – reported that he’d been invited to lunch earlier this year with road commissioners Schwartz and Doug Fuller to discuss the millage issue.

This news prompted board chair Conan Smith to quip that the lunch had violated the Open Meetings Act. [Though joking, Smith's statement may have been accurate. With only three members on the road commission, two members constitute a quorum. The Open Meetings Act is violated if two road commissioners deliberate towards a decision on road commission business and their meeting has not been properly noticed as open to the public.]

Turner continued, saying Schwartz had found that the 1909 law requires the county road commission to present a report on its needs to the county board, including a request for funding. The road commissioners expressed a desire to do that, Turner said. After that meeting with the road commissioners, Turner said, he discussed the issue with Hedger and McDaniel. It was determined that Hedger would do research to see if the state’s gas tax legislation superseded the 1909 law.

However, Turner said, road commissioners have subsequently decided to move forward, without waiting for the county to weigh in. So in August the road commission passed a resolution to make a request at the county board’s annual meeting in September. Turner noted that the board doesn’t have to act on the road commission’s request – they have options.

Conan Smith said the road commission has a robust plan that needs to be shared. The plan seems to focus on projects at the boundaries between jurisdictions, he noted, and their prioritization process is worth hearing. The legalities are also interesting, Smith said. While he’s sorry the issue has been “sprung” on them, at the same time it’s fascinating.

Prater noted that there’s legislation pending in Lansing that would repeal Act 88 (the economic development millage), though it’s been held up in committee. He suspected that when people get wind of this road millage, there’ll be efforts to stop that, too.

In a phone interview this week with The Chronicle, Hedger said he’d had an informal conversation with an assistant state attorney general, who didn’t know of any other county that had passed such a millage. Hedger said he’d also called around to several other counties and road commissions in Michigan, and hadn’t found any place that levied this kind of millage. However, he said it would be premature for him to give advice on the matter before anything had been proposed.

Reached by phone this week, Schwartz told The Chronicle that the state law has been overlooked for decades, but that it remains in effect and makes it mandatory for the road commission to present a road improvement plan, with an estimate for the amount to fund that plan through a millage. A cap on the amount that can be raised is based on the size of the county’s taxable property value – for Washtenaw County, the cap is 1 mill.

The plan that Schwartz and Townsend expect to present to the county board recommends an 0.6 mill tax, which would raise about $7 million. The road commission’s current budget is about $16.5 million. Schwartz said the primary road commission funding, received via the state, hasn’t kept up with labor and material costs. Many roads in the county are in bad shape, he said, but the road commission lacks resources to repair them.

Many of the proposed projects span multiple jurisdictions, Schwartz noted, which often makes the work trickier to coordinate and fund. Examples include Ann Arbor-Saline Road near the I-94 interchange – parts of that stretch are the responsibility of the city of Ann Arbor, the Michigan Dept. of Transportation, and the road commission. As another example, a section of Grove Road in Ypsilanti, which is a feeder route into Ypsilanti Township, is seriously degraded, Schwartz said, but Ypsilanti doesn’t have the funds to pay for repair.

The millage would be collected countywide, but spent on projects in proportion to a jurisdiction’s taxable value, Schwartz said. He noted that unlike funding for things like human services, road repair is clearly measurable – commissioners can simply go out and drive the roads to see what kind of condition they’re in.

Schwartz also indicated that the work would likely be contracted out – the road commission doesn’t anticipate using the funds to hire permanent staff.

Like Hedger, Schwartz said he didn’t know of any other Michigan county that was levying this millage. He said the last time it was levied in Washtenaw County was in the late 1960s or early 1970s, for work that included roads around Washtenaw Community College, which opened its Huron River Drive campus in 1970.

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The city of Ann Arbor held a special meeting on Aug. 29, before its next regularly scheduled meeting on Sept. 6. The urgency to hold a special meeting was based on a typo in a legislative staffer's early draft of a subsequently corrected memo, not based on the actual date in the state's new employment health care legislation. (Simulated correction "illustration" by The Ann Arbor Chronicle)

Key features of the agreement with the 230-member union include: no across-the-board pay increases for the duration of the agreement; employees will make greater contributions to their pension and health care plans; a 10-year vesting period for the pension plan; and an access-only style plan for retiree healthcare benefits.

Council deliberations were relatively brief, with remarks focusing on praise for the city and the union’s respective bargain teams and details of the agreement. Almost equal time was given to the manner in which the special meeting was noticed to the public.

Though questions were raised by The Chronicle through the day on Monday about whether the city had met its obligation to provide notice to the public under the Michigan Open Meetings Act, city attorney Stephen Postema relied on a recent unpublished court of appeals opinion, which is not binding on other courts and which included a strong minority dissent, to justify the city’s failure to meet a basic noticing standard set forth in an opinion from Michigan’s attorney general.

That AG’s opinion – which is also not binding on courts, but which has guided the conduct of public bodies in Michigan for over 30 years – requires public bodies to post physical notice of special meetings in a way that makes the notice publicly accessible for the 18 hours preceding the meeting.

The council’s urgency in approving the contract, reflected in the calling of the special session, was based on recently passed state legislation that limits the amount that public employers can contribute to employee health care costs. Ann Arbor’s contract with AFSCME does not conform to the limits set forth in the legislation. So the council was keen to approve the contract before the effective dates stipulated in the legislation, and did so with only seven of its 11 members able to attend the meeting.

The legislation itself specifies Sept. 15, 2011 as the relevant date; however, Ann Arbor city staff appeared to rely not on the legislation, but on an early draft of a memo drawn up by a legislative staff aide to state senator Mark Jansen, which contained a typo. Although the draft was corrected immediately after its limited initial distribution, the original draft’s stipulation of “Sept. 1″ instead of “Sept. 15″ spurred the city of Ann Arbor to convene the special meeting. The council’s next regularly scheduled meeting is on Tuesday, Sept. 6, 2011 – well before the actual Sept. 15 date in the legislation. 

AFSCME Contract

The Aug. 29 special session had one item on its agenda – the new AFSCME contract. In mayor John Hieftje’s absence, the meeting was chaired by Marcia Higgins (Ward 4). The council’s attendance at the meeting exceeded the minimum number required for a quorum. Besides Hieftje, absent were Mike Anglin (Ward 5), Carsten Hohnke (Ward 5) and Margie Teall (Ward 4).

AFSCME Contract: Council Deliberations

Stephen Rapundalo (Ward 2) began the deliberations on the contract. [Rapundalo chairs the council's labor and administration committee, but was not part of the city's bargaining team. According to Robyn Wilkerson, head of the city's human resources department, the bargaining team consisted of Wilkerson and Aimee Carroll in the city's human resources department, and Nancy Niemela in the city attorney's office. They had support from human resources staff Richard Martonchik and Sharie Sell.]

Rapundalo said it was a pleasure to bring the contract forward. He said credit has to be given to the AFSCME  leadership and the two negotiating teams. He noted the short time period since the expiration of the previous contract on June 30. The negotiations entailed very earnest discussions that were beneficial to city, he said.

Ticking through the key features of the contract, Rapundalo noted that for its duration, there would be no wage increase. Union employees would increase their contribution to the pension plan by 1%. Eliminated is the 457 match – a 457 plan is roughly a public sector equivalent of a 401(k) plan.

Health care, Rapundalo continued, will be based on a high-low plan through the remainder of the contract period. [Under the old contract, AFSCME union employees did not make a monthly contribution for health care costs and paid a $225 deductible. Under the new contract, they can continue to pay no monthly contribution (low design), but incur a higher deductible – $1,000 per individual. On the high design, an employee would make a $44 monthly contribution, but pay only a $300 deductible. ]

The union was adamant, Rapundalo said, about retaining a full-time union official, and the city had agreed to continue that city-paid position through the current contract. But the city had put the union on notice that the city would ask it to eliminate that position at the conclusion of the ratified contract period, Rapundalo said. The city had asked for a daily activity report of the union official to get a sense of what that person did.

Rapundalo said there’d been “a lot of give” on the use of temporary employees and restrictions on their use. The union had also agreed to the new-hire program in which employees will take 10 years be vested in the retirement program instead of five.

The total savings to the city, Rapundalo said, was just shy of $700,000, 25% of which is savings in the general fund. That amounted to a reduction of  just over 3%, which had been the target, he said.

Marcia Higgins (Ward 4) stressed a contract feature under which new employees will have the same retiree health care as non-union employees. Asked for any additional details he wanted to add, interim city administrator Tom Crawford replied, “It sounds like you guys covered it.”

Sabra Briere (Ward 1) questioned the relative brevity of the contract. Assistant city attorney Nancy Nimela explained that it goes through Dec. 31, 2013. The council had requested that the city keep the contracts as short as possible, given the economic times, Nimela said. The contract was ending in December, in part because the city is changing AFSCME’s health care to a calendar year period.

Briere asked if the agreement conformed to the requirements of the new state legislation that was passed but still awaiting the governor’s signature – which limits the amount that public employers can contribute to employee health care. Nimela described it as “closer” to meeting the constraints of that legislation, but it’s not quite there.

Briere wanted to know if the city would need to open up contracts and revise them in light of the new state legislation. Nimela explained that it would not be necessary, and the contract could last through its entire period under the new state legislation. However, when the contract expires, the new contract will need to conform.

Open Meetings Act: Public Notice of Aug. 29 Meeting

During deliberations at the council’s meeting, Sabra Briere (Ward 1) noted that she’d seen correspondence on email over the weekend and through the day about the proper noticing of the meeting, and had dealt with multiple questions from constituents about the meeting – what was the meeting supposed to be about?

Briere drew out the city’s contention that the paper posting of the meeting was put in a glass display case in the lobby of city hall on Friday, Aug. 26. From Tom Crawford, interim city administrator, she elicited the fact that the posting was not placed in the glass display case designated by a label for the city council’s business, but rather in an adjacent, unlabeled window.

The unlabeled case contained three other postings, unrelated to council business – a medical marijuana licensing board notice, a board of canvassers notice and an election commission notice. The three non-council related notices were poster-like inasmuch as they appeared designed for posting on a wall, with bold headlines containing the name of the entity that was meeting in what appeared to be roughly half-inch high letters. The city council special session notice was simply the same memo, in ordinary typeface, that was sent by the clerk to councilmembers to satisfy the city charter requirement that the members of the council be notified of the special meeting.

The four notices in the glass case adjacent to the one labeled for the city council were arranged in a 2 x 2 matrix, with the city council special session notice in the lower left corner, separated from the city council glass case by a column of two non-council-related notices and the window divider.

At the council’s meeting, city attorney Stephen Postema was unperturbed by the placement of the meeting notice, saying that the labels on the glass display cases are there as a courtesy, not as a requirement. [On previous occasions, the city has also defended placement of meeting notices in locations not in the glass cases at all, but in a different part of the building.] He explained that the labels aren’t required to be there at all.

Also at issue was the public accessibility of the meeting notice. The glass cases where the meeting notice was placed are not visible from outside the city hall. The city hall lobby was locked through the weekend. In an email to The Chronicle, Postema admitted that the city hall building was not unlocked until 6 a.m. on Aug. 29, leaving the city well short of the 18-hour time window set forth in a Michigan attorney general opinion issued by Frank Kelley in 1980. The state’s Open Meetings Act statute explicitly requires that notice of a special city council meeting be posted at least 18 hours in advance of the meeting. And Kelley’s opinion interprets that part of the statute to require that the notice be accessible to the public continuously for the 18 hours preceding the meeting.

However, in advising councilmembers that they could hold their meeting without violating the Open Meetings Act, Postema relied on a recent court of appeals decision that rejected the reasoning in Kelley’s opinion. In the May 26, 2011 decision, (Citizens For Public Accountability & Responsible Development v. Northville Charter Township Board Of Trustees) two out of the three judges on the panel found that “In short, there is no time requirement inherent in the definition of ‘public notice,’ …”

However, the court did not choose to create a precedentially binding decision for other courts, which it could have done by publishing its decision. In dissenting from her colleagues on the panel, Judge Elizabeth Gleicher echoed the attorney general’s approach to statutory interpretation, which addresses the purpose of the legislation. She wrote in her dissent:

Construing the OMA as a whole and harmonizing its terms, I conclude that the Legislature intended that the public have access to a “public notice” for the entire designated 18-hour period. In my estimation, “public notice” means exactly that—notice made available to the public, not dark, deserted building corridors. The majority construes the OMA’s notice provision in a manner that would permit a public body to notify the public of a special meeting commencing at 9:00 a.m. on a Monday by posting a notice at closing time on a Friday afternoon. Indisputably, this “notice” would frustrate the legislative purpose expressed in the statute. But with its analysis, the majority sanctions precisely such “public notice.” Rather than interpreting MCL 15.265(4) expansively, the majority reads the term “public notice” out of the sentence requiring 18 hours’ notice.

At the council’s meeting, Briere also drew out the fact that the city’s press release sent out on Aug. 25, about the new AFSCME contract, mentioned that the council would be considering the contract at its next meeting, on Aug. 29, but did not mention the unusual 5:15 p.m. starting time. The press release also did not mention the fact that the Aug. 29 meeting was a special meeting that had been called.

By way of additional background, The Chronicle inquired with the city’s communication unit, which sent out the press release to The Chronicle among other news organizations, whether a special meeting had been called. City of Ann Arbor communication director Lisa Wondrash confirmed the intent of the council to convene a special meeting, but did not provide the time of the meeting. The Chronicle has a standing request made under the OMA statute, that the city notify The Chronicle of any special meetings at the same time they are posted; however, the city clerk’s office did not send out a notification that included the time of the meeting, until The Chronicle notified the city attorney about the city’s failure to notice the meeting properly.

At the council meeting, Stephen Rapundalo (Ward 2), responded to Briere’s description of receiving questions from her constituents about the topic of the meeting. He contended that the agenda for the meeting was posted in the city’s online Legistar system on Friday, Aug. 26.

Based on a conversation with AnnArbor.com’s regular city council beat reporter, Ryan Stanton, who was arriving at city hall around 6:55 p.m. as The Chronicle was departing, the unusual 5:15 p.m. start for the meeting was not well-publicized. AnnArbor.com’s reporter expressed surprise that the meeting had already concluded and stated that he thought the original posting had specified 7 p.m.

Reason for Urgency

The special meeting called for Aug. 29, 2011 came just a week before the next regularly scheduled council meeting, on Sept. 6 – which falls on a Tuesday due to the Labor Day holiday.

The state legislation mentioned by Sabra Briere (Ward 1) during the council meeting – which includes provisions with which the new AFSCME contract does not conform – is the “Publicly Funded Health Insurance Contribution Act” given approval by the legislature on Aug. 24, 2011. It has not yet been signed by Gov. Rick Snyder, but is scheduled for signing on Sept. 15.

So why did the Ann Arbor city council have sense of urgency about ratifying its AFSCME contract?

Reason for Urgency: What the Legislation Says

The guts of the legislation is in Sections 3 and 4 [.pdf of the bill]. Section 3 describes maximum “hard cap” dollar amount equivalents that public employers can contribute toward employee healthcare: $5,500 for single-person coverage, $11,000 for individual and spouse coverage, and $15,000 for family coverage – for coverage years beginning on or after Jan. 1, 2012.

Section 4 describes an option which an employer can follow, if approved by a simple majority vote of its governing body, which would limit the benefit contributed by the employer percentage-wise instead of using a hard cap. On that option, public employers could contribute no more than 80% of their employees’ health care costs for coverage years beginning on or after Jan. 1, 2012.

On a 2/3 majority vote, which must be repeated each year, a governing body of a public employer can opt out of the requirements in both Section 3 and Section 4.

When does the legislation go into effect? The legislation states that [emphasis added]:

Sec. 5 (1) If a collective bargaining agreement or other contract that is inconsistent with sections 3 and 4 is in effect for a group of employees of a public employer on the effective date of this act, the requirements of section 3 or 4 do not apply to that group of employees until the contract expires. …

So what is the effective date? Based on Chronicle conversations with legislative staff members in the offices of Rep. Jeff Irwin, whose District 53 covers Ann Arbor, and Sen. Mark Jansen, who sponsored the bill, the working understanding is that the effective date is Sept. 15, when Gov. Rick Snyder is scheduled to sign the legislation into law. Based on remarks made at the Aug. 29 city council meeting, there appears to be some perception that if Snyder were to sign the law earlier than Sept. 15, this would have an impact.

The legislation itself is straightforward about when collective bargaining agreements must comply with the new law [emphasis added]:

Sec. 5 (2) A collective bargaining agreement or other contract that is executed on or after September 15, 2011 shall not include terms that are inconsistent with the requirements of sections 3 and 4.

So it’s clear why the council might have wanted to make sure to act before Sept. 15 – the AFSCME contract included terms inconsistent with sections 3 and 4.

But the council has a regularly scheduled meeting on Sept. 6. So why did it need to convene a special session on Aug. 29?

Reason for Urgency: An Early Draft Memo

Queried about the urgency of the council in convening a special meeting, interim city administrator Tom Crawford emailed The Chronicle that the city had received the following guidance from the state [emphasis added]:

Q: When does this law take place?

A: The act applies to medical benefit plan coverage years beginning on or after January 1, 2012. However, contracts settled between Sept. 1, 2011 and January 1, 2012 must not contain terms that are contrary to the act, and will go into effect upon the expiration of the medical benefit plan year.

The Chronicle traced the language cited by Crawford to an FAQ document developed by the state legislature’s conference committee for the bill. Authorship of that document was then traced to a legislative staffer with Sen. Mark Jensen’s office, Debbie Drick. She indicated in phone conversation with The Chronicle that the Sept. 1 date was in fact simply a typo – it should have been Sept. 15. But she continued, saying that almost immediately upon distribution of that version to the conference committee, she’d collected the errant copies and swapped in a corrected version.

Apparently enough copies survived in the wild for Ann Arbor city staff to use that initial, uncorrected version without questioning the accuracy of the Sept. 1 date – which is not referenced anywhere in the actual text of the legislation.

Present: Stephen Rapundalo, Sabra Briere, Sandi Smith, Stephen Kunselman, Marcia Higgins, Christopher Taylor, Tony Derezinski

Absent: Mike Anglin, Margie Teall,  John Hieftje, Carsten Hohnke

Next regular council meeting: Tues. Sept. 6, 2011 at 7 p.m. in the council chambers at 301 E. Huron. [confirm date]

A sketch by Cathy Gendron of the location for a proposed mural along Huron Parkway, on Ann Arbor's east side. The mural site is indicated with a thin rectangle near the letters "G.C.", which mark the Huron Hills Golf Course.

At the March 11 meeting, which was covered by The Chronicle, AAPAC member Jeff Meyers had presented recommendations from a public mural task force he chairs. The two sites – a building at Allmendinger Park, and a retaining wall along Huron Parkway – will be the first for a pilot mural project spearheaded by Meyers.

At the previous special meeting, commissioners had held a lengthy discussion before voting to approve the sites. The meeting on Wednesday was far shorter, with Meyers giving a brief summary of the selection process. Two of the five members who attended Wednesday had not been present at the March 11 session, however, and they had some questions about the sites.

Meyers also reported that since March, city staff have advised him to make a presentation at the next meeting of the Ann Arbor park advisory commission, since the sites are near or within city parks. Two public meetings – one for each site – will also be scheduled, to get input from residents.

Mural Site Selection Redux

Meyers briefly described the task force’s site selection process – he also had previously emailed notes from the March meeting to the commissioners who hadn’t been present then. [See Chronicle coverage: "Public Art Group Picks Two Mural Sites"]

Cathy Gendron asked for clarification on where the Huron Parkway mural would be located, saying it was in her neighborhood. Meyers described the site as the northern-most retaining wall, on the western side of the road. Margaret Parker – who did attend the March meeting and who voted for the site – still expressed uncertainty about the location, prompting Gendron to sketch out a map showing the retaining wall in relation to Huron Parkway and the city-owned Huron Hills Golf Course.

Parker asked what the dimensions of that mural would be. Meyers replied that he didn’t have that information on hand, but that the task force was also reluctant to mandate the exact dimensions of a mural. Rather, they want to leave it to the discretion of the artist they select. Parker said she had concerns about the size – if it’s too large, she said, the funds provided to the artist might not cover the cost of materials.

Wiltrud Simbuerger, the commission’s newest member, wondered why the task force decided not to pick the water tower at County Farm Park as a mural site. There were several reasons, Meyers said. It was unclear whether the $10,000 budget would cover the costs for the artist and materials at that site. In addition, the city intends to paint it within the next two years, and there might be an opportunity in the future to synchronize a mural project with that repainting, he said.

Gendron asked whether the task force or the artist determines how the $10,000 will be used. The money is given to the artist, Meyers said, who’ll determine how it’s allocated. Up to $5,000 in additional funding is available for city administrative costs, he said. That still keeps each mural’s entire budget under the $20,000 threshold, he added – anything above that would require city council approval.

Outcome: Commissioners voted unanimously to select a portion of the retaining wall along Huron Parkway as one of two sites for the pilot mural project.

Meyers then described the proposed mural site at Allmendinger Park, located on Pauline between Hutchins and Edgewood. It would include all 14 concrete pillars that encircle the building there, where restrooms for the park are located. The site was chosen because it’s in a high-use park, with an active playground, sports fields and picnic areas. The task force liked the location because it’s in a residential neighborhood, rather than downtown or along a highway. It’s on a street – Pauline Boulevard – that gets a lot of bike, pedestrian and motorized traffic.

The pillars could be viewed as a single canvas, or as 14 individual murals, Meyers said. He noted that some city staff had initially expressed reservations about the site, because of problems with vandalism and graffiti. But rather than getting defaced, murals tend to deter graffiti, he said, pointing to murals in the downtown area that go untouched.

Meyers told commissioners that although city staff had been lukewarm about the site, they seemed to be warming up to it. They would need to do community outreach, he said, but he hoped the neighbors would embrace it.

Gendron said she liked this site a lot – better than the Huron Parkway retaining wall. She wondered if the artist decided not to use all 14 pillars for the mural, would it make those “naked” pillars more of a target for graffiti? Meyers noted that the commission had talked about this issue before they approved the pilot project. If vandalism is a problem, then they’d have to decide whether to invest in restoring the mural, or retiring it.

Gendron observed that 14 pillars are a lot to cover – she could imagine a scenario in which every other one would be painted. Parker said they could recommend that all the pillars be covered, but Meyers cautioned against limiting the artist by making suggestions about how to approach the project.

Outcome: Commissioner voted unanimously to approve the Allmendinger Park building’s 14 pillars as the second site for the pilot mural project.

Next Steps

Meyers described the steps they’ll need to take now that AAPAC has officially selected the two mural sites. On the recommendation of city staff, he’ll make a presentation at the next meeting of the Ann Arbor park advisory commission. [That meeting, originally scheduled for April 19, has been pushed back until April 26. It begins at 4 p.m. at the county administration building, 220 N. Main St.] In addition, the city will schedule two public meetings, one for each site, to get public feedback from residents.

Meyers said they’ll need to consult with Sue McCormick, the city’s public services area administrator, about where to draw the appropriate funds for the mural project. [To conform with the Percent for Art ordinance, funding sources for each mural would either be linked directly to its physical location, or be linked thematically with the funding source. For example, a mural located in a park could be funded from the parks millage Percent for Art funds. If a mural is funded through the street millage, it would need to have a transportation theme.] When the funding sources are determined, he said, AAPAC will vote on whether to approve that allocation.

In addition, two new task force members will be selected, representing stakeholders for each of the mural sites. They’ll be soliciting input from community groups to help in the selection, Meyers said – groups like the Allmendinger Neighborhood Association. Parker suggested that the new members might be selected from people who show up to the public meetings about the murals.

AAPAC’s projects committee will oversee the request for qualifications (RFQ) process, Meyers said, as it did when selecting an artist for the public art project at West Park.

Special Meetings

The Michigan Open Meetings Act requires that notices of special meetings be posted at a public body’s principal offices at least 18 hours in advance of the meeting. Based on the Attorney General Opinion 5724, such notices need to be accessible to the public for the entire 18-hour period before the meeting – even if the building where the offices are located is locked for a portion of that time.

The attorney general’s opinion suggests that one way to meet that requirement is to post the notice at an entrance to the building so that it is visible from the outside. That’s what the city of Ann Arbor did when it posted the notice for the city council’s recent special meeting on April 11.

Commissioners present: Marsha Chamberlin, Cathy Gendron, Jeff Meyers, Margaret Parker, Wiltrud Simbuerger.

Absent: Connie Brown, Elaine Sims, Malverne Winborne, Cheryl Zuellig.

Next regular meeting: Wednesday, April 27 at 4:30 p.m., 7th floor conference room of the City Center building, 220 E. Huron St. [confirm date] The commission has also scheduled an annual planning meeting for Thursday, March 31 starting at 5:30 p.m., also in the 7th floor conference room of the City Center building.

The basketball hoop on the south end of the court in Ann Arbor's newly renovated West Park. (Photo by the writer.)

Here’s a highlight reel of how events unfolded on Tuesday. Play opened with a disputed call, and one of the fans nearly got tossed out of the venue. There was a guy with a red sweater, reminiscent of those favored by Bob Knight when he coached the Indiana University squad, even though he was not the guy in danger of getting tossed. He was actually prepared to do the tossing.

Early on, the coach told the team about the “four corners” – which some older sports fans might recognize as a stalling style of basketball made popular by legendary University of North Carolina coach Dean Smith. And the team managed to hold the ball for one final shot, which it made. The cheerleaders cheered. The victors were valiant … hail, hail, etcetera.

The venue? It was the fourth floor meeting room of city hall. And the five-person team was the committee charged with evaluating proposals for use of the city-owned Library Lot. That’s the parcel atop the Fifth Avenue parking structure currently under construction.

Who says local civic affairs isn’t at least as interesting as NCAA basketball? Well, actually, most readers would say that, I’m guessing.

But here’s something I think we can all agree on: Fans at basketball games get to cheer or boo as loud as they like … within certain parameters. The parallel principle for public meetings, like the one on Tuesday, is that members of the public should be allowed to address the group during its meeting.

The city of Ann Arbor’s stated written policy on this is actually quite clear: Even entities that are not public bodies under the Open Meetings Act should, to the best of their abilities, conform with the spirit of the OMA – which includes a provision for public participation at meetings.

The Dispute with the Ref

The “fan” who risked getting tossed from the meeting room was local attorney Tom Wieder. [A "telestrator-annotated" version of the opening paragraphs is appended at the conclusion of this column. For regular news coverage of the meeting, see "Work Session Called on Conference Center"] When committee chair Stephen Rapundalo started the meeting on Tuesday, Wieder indicated he wanted to address the committee, saying that the city’s policy allows it.

Rapundalo replied that the RFP review committee was an “advisory committee” and it would not be entertaining public commentary. However, the committee did welcome public input, Rapundalo stressed, and he encouraged people to communicate in writing to the committee, or to city councilmembers, or the city administrator.

Wieder challenged Rapundalo to demonstrate that the committee had actually chosen not to entertain public commentary. When Rapundalo said the committee had been using rules that did not include a provision for public commentary, Wieder wanted to know if there was a written copy of the rules and whether the committee had voted on using those rules. Rapundalo finally said, “Mr. Wieder, I’m trying to run a meeting.” City administrator Roger Fraser admonished Wieder, saying that if he wanted to be disruptive, the committee could ask him to leave.

When Wieder said he was simply asking to be able to address the committee, committee member Margie Teall – who represents Ward 4 on the city council – told Wieder that he was not asking, but rather was insisting. Wieder allowed that, well, okay, he had been insisting. When Fraser pointed out that Rapundalo had made clear that no opportunity for public commentary would be given, Wieder replied: “I did hear what he said,” to which Fraser shot back, “You didn’t act as if you did.”

Wieder could lay claim to the last word in the exchange by replying, “No, I just didn’t accept it.” From that point on, Wieder sat back and listened.

What Play Are We Running?

In one sense, it was fine theater – Wieder appears comfortable in the role of the rabble-rouser. For all we know, he wanted to get tossed out of the meeting – for the same reason a basketball player or coach will sometimes deliberately bait the referee into calling a technical foul. It sometimes serves to fire up your team and to shift the momentum of a game.

But what exactly was Wieder talking about? Does Ann Arbor really have a policy on whether someone can address a meeting like one held by the Library Lot RFP review committee? Yes. The playbook Wieder was working from – as an email he sent to Rapundalo following the meeting makes clear – is a resolution passed by the city council in 1991:

R-642-11-91 RESOLUTION REGARDING OPEN MEETINGS FOR CITY COMMITTEES, COMMISSIONS, BOARDS AND TASK FORCES
Whereas, The City Council desires that all meetings of City boards, task forces, commissions and committees conform to the spirit of the Open Meetings Act;
RESOLVED, That all City boards, task forces, commissions, committees and their subcommittees hold their meetings open to the public to the best of their abilities in the spirit of Section 3 of the Open Meetings Act; and
RESOLVED, That closed meetings of such bodies be held only under situations where a closed meeting would be authorized in the spirit of the Open Meetings Act.

The idea of the resolution is this: Even entities to which the OMA would not technically apply are still expected to conform to the spirit of Section 3 of the OMA – to the best ability of that entity’s members. Section 3 includes a provision that allows a person to address a meeting of a public body.

It’s a council resolution The Chronicle has written about previously – in connection with the council’s apparent game plan of calling its ad hoc committees “work groups” in order to shield their work from the 1991 resolution. From an April 2010 Chronicle article:

On Friday, April 16, [2010] at 3 p.m. members of the DDA’s committee met with some city councilmembers in Roger Fraser’s office to discuss the deal. In barring The Chronicle from the Friday meeting, which we attempted to attend, Fraser rejected the applicability of the council resolution that requires the meetings of city sub-committees to comply with the Open Meetings Act, contending it was a “working group,” not a sub-committee.

That incident involved a committee charged with negotiating with the Ann Arbor Downtown Development Authority on a new contract for managing the city’s public parking system. In addition, currently the city council is also picking and rolling with a “work group” that it has put together to study the question of a city income tax – instead of simply referring the matter to its budget committee.

From The Chronicle’s report of a recent budget retreat:

At the Jan. 8, 2011 retreat, there was some back-and-forth about whether the work group looking at the income tax question – as well as the possibility of a Headlee override – should be called a “committee” or a “work group.” Implicit context for the distinction is that council committees are supposed to do their best to conduct their meetings openly in accordance with the Michigan Open Meetings Act – based on a two-decades-old city council resolution. Work groups are not considered to have the same obligation.

View from the Head of Officials

In a dispute over rules, policy and legal matters, the view of the city attorney carries some weight. Does Ann Arbor’s city attorney acknowledge the current applicability of a two-decades-old city council resolution? Yes. Last year, Tony Derezinski (Ward 2) asked city attorney Stephen Postema during a council meeting whether a committee of the council could violate the Open Meetings Act.

In asking the question, Derezinski was in some sense running the alley-oop play – where one player lobs a ball above the basket to a teammate who can throw down an easy dunk. Derezinski served in the state legislature when the Open Meetings Act and Freedom of Information Act were passed, and is a retired attorney specializing in municipal law, so he likely knew the answer to the technical OMA question.

But Postema couldn’t deliver the simple answer that Derezinski seemed to expect, because of the city council’s 1991 resolution. From The Chronicle’s report of that May 17, 2010 meeting:

Tony Derezinski (Ward 2) asked the city’s attorney, Stephen Postema, if a council committee could be subject to the Open Meetings Act (OMA). Postema indicated to Derezinski that it was not the OMA, but rather a council resolution [from 1991] that was the “operative document.” [It requires city committees to adhere to the OMA to the best of their abilities.]

But what about “advisory committees”? In explaining to Wieder why he wouldn’t be allowed to address the meeting, Rapundalo stressed that the RFP review committee was an “advisory committee.” Did Postema say anything about advisory committees last May?

For that, we need to go to the tape. It’s at roughly the 1:51:00 mark where Postema states [emphasis added]: “… if it’s truly an advisory committee … under the attorney general’s opinion and others, an advisory committee would not be covered under the Open Meetings Act, but it would still be covered under the council resolution.”

It’s difficult to see how simply encouraging people to contact the committee, or their councilmembers, or the city administrator outside of the committee meeting could be analyzed as serving the spirit of the Open Meetings Act requirement that a person be allowed to address a meeting.

If civic affairs in this city had a challenge flag that could be thrown, the booth review would have shown that Wieder was right and should have been allowed to address the meeting. Ah, but challenge flags and video review are for football. And this, apparently, is basketball we’re talking about.

Playing Smart

Independent of the fact that the decision to refuse Wieder the opportunity to speak was inconsistent with the city’s policy on committee meetings, it just wasn’t smart.

Regardless of what you might think about the value of public participation in the abstract, there is a real practical benefit to not just allowing, but actually insisting that the public come and address meetings, particularly on controversial issues.

Thinking along purely adversarial lines, for proponents of the conference center proposal, Rapundalo squandered an opportunity to watch the other side scrimmage.

Thinking more cooperatively, refusing someone the opportunity to address a meeting leaves skill and expertise that exists in the community lying on the table. Certainly that skill and expertise – in the form of, say, critiques of the letter of intent – might eventually be brought to bear on the issue. Written communication after the fact could be used to improve whatever letter gets signed – or influence a decision not to sign the letter at all.

But there is, I think, greater value to injecting that skill and expertise in a more timely fashion, by including it in the public meetings that lead up to the “big game.”

Telestrated Version of Opening Paragraphs

Here are the X’s and O’s of this column’s opening paragraphs.

On Tuesday a capacity crowd packed a local Ann Arbor venue to watch a five-person team do its work. [The Library Lot RFP review committee consists of five members: Margie Teall, Stephen Rapundalo, John Splitt, Eric Mahler, and Sam Offen.] Part of the color commentary included talk of game-changing players [the conference center proposed by Valiant has been described as having the potential to be a "game changer"] and speculation about who had the best center of all the conferences [Valiant's proposal is for a conference center]. Everyone knew that whichever team prevailed on Tuesday would not win the whole tournament – it would just advance to the next round. [The recommendation to sign a letter of intent will ultimately require city council action.]

Here’s a highlight reel of how events unfolded on Tuesday. Play opened with a disputed call, and one of the fans nearly got tossed out of the venue. [Tom Wieder repeatedly asked to address the committee and was told by city administrator that he might be asked to leave.] There was a guy with a red sweater, reminiscent of those favored by Bob Knight when he coached the Indiana University squad, even though he was not the guy in danger of getting tossed – he was actually prepared to do the tossing. [Roger Fraser sported a red sweater vest.] Early on, the coach told the team about the “four corners” – which some older sports fans might recognize as a stalling style of basketball made popular by legendary University of North Carolina coach Dean Smith. [David Di Rita of The Roxbury Group called the what, where, when and how of the project the "four corners."] And the team managed to hold the ball for a one final shot, which it made. [The committee voted 5-0 to recommend that the city council approve a letter of intent.] The cheerleaders cheered. [Margie Teall offered that she thought it was a great idea.] The victors were valiant … hail, hail, etcetera. [The name of the development team is Valiant, which is an allusion to the University of Michigan fight song. The song's chorus begins with the line, "Hail to the victors, valiant ..."]

About the writer: Dave Askins is editor and co-founder of The Ann Arbor Chronicle.