Only Kaplan and Barbara Murphy voted in favor of the resolution. It was defeated by a 2-4 vote, with trustees Rebecca Head, Jan Barney Newman, Margaret Leary and Prue Rosenthal voting against it. Ed Surovell was absent.

This brief was filed from the AADL board meeting at the downtown library on South Fifth Avenue. A more detailed report will follow: [link]

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

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

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

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

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

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

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

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

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

The Pattern of Closed Sessions

By way of review, the basic requirement of the Open Meetings Act (OMA) is that all deliberations and decisions of a public body are supposed to be held at meetings that are open and accessible to the public. But the OMA also allows a public body, for a limited set of very narrowly-defined purposes, to conduct a session out of view of the public. Some of the more frequently used purposes for justification of Ann Arbor city council closed sessions include the following, from the statute:

15.268 Closed sessions; permissible purposes.
…
(c) For strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement if either negotiating party requests a closed hearing.
(d) To consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained.
(e) To consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body
…
(h) To consider material exempt from discussion or disclosure by state or federal statute.

In layman’s terms, these exceptions can be summarized as involving labor negotiations, land acquisition, pending litigation, or discussion of attorney-client privileged information.

The closed session that was the subject of The Chronicle’s lawsuit was one for which the city relied on the exception specified in 15.268(h). Specifically, in its response to the lawsuit, the city defended the closed session under 15.268(h) by claiming that it had been held to discuss documents that were subject to the attorney-client privilege.

In reviewing the council minutes for more than two calendar years, we were able to identify an apparent change in the pattern of closed sessions held by the council since The Chronicle’s lawsuit was served on Sept. 24, 2010. Before that time, the council routinely held closed sessions based on discussion of attorney-client privileged material. Since our lawsuit was served, not one session of this type has been held. Further, it appears that the overall pattern of closed sessions based on other reasons has also decreased.

In the timeline representation below – of closed sessions held between January 2009 and March 2011 – bright green dots represent occasions when there was a city council meeting, but no closed session held. Light blue dots were closed sessions based only on some reason other than consideration of attorney-client privileged communication. Dark blue dots represent closed sessions that were based on reasons that included attorney-client privileged communication. The heavy vertical bar marks the date that The Chronicle lawsuit was served – Sept. 24, 2010.

Left to right is a timeline starting in January 2009, going through March 2011. Bright green dots represent occasions when there was a city council meeting, but no closed session held. Light blue dots were closed sessions based only on some reason other than attorney-client privileged communication. Dark blue dots represent closed sessions that were based on reasons that included attorney-client privileged communication. The heavy vertical bar marks the date when The Chronicle's lawsuit against the city was served. (Image links to higher resolution file.)

Legal Issues

But just because the Ann Arbor city council appears to have stopped holding closed sessions with their city attorney based on attorney-client privileged communications is not an explicit admission they did anything wrong. It does, however, suggest that the city council and the city attorney are finally treating the attorney-client privileged closed sessions with the rigor they deserve.

The Chronicle never challenged the right of the city council, based on the OMA statute, to enter into a closed session to discuss attorney-client privileged information – it would be absurd to do so, because a public body clearly has that right. Yet city attorney Stephen Postema attempted to portray the controversy, in court briefs and to the media, as one about the right of the city council to hold a closed session. In refusing The Chronicle an interview after the hearing, Postema offered only the following written statement:

The Circuit Court properly dismissed this case and recognized that the Ann Arbor City Council did nothing improper in attending a closed session on July 19th, 2010. The Michigan Open Meetings Act specifically authorizes the City Council to attend such closed sessions to discuss attorney client communications.

By setting up a straw man about whether the council had a right to hold a closed session, Postema’s statement distracts from the actual controversy, which was this: Did the council use its July 19 closed session for its stated purpose, or did it instead stray from that purpose in a way that violated the OMA? Postema’s characterization notwithstanding, Judge Morris simply was not convinced that there was sufficient evidence to proceed with discovery, which would have included interviewing councilmembers and the city attorney under oath, and collecting documents that the city attorney may have shared with parties other than the city council, like the Michigan Association of Municipal Attorneys. Lack of discovery will leave history to wonder whether the council actually used that closed session in the manner allowed by the OMA statute.

What counts as the proper use of a closed session?

The OMA statute is clear about the limited set of reasons that can justify a closed session. Postema’s choice of the word “attend” to describe the council’s relationship to a closed session suggests that his concept of an appropriate use of a closed session is still flawed.

So in laying out why we still disagree with the conclusion reached by Judge Morris, we begin by asking: Whose closed session is it?

Legal Issues: Whose Closed Session Is It?

Postema’s description of the city council’s “attendance” at a closed session is somewhat odd, because it suggests that he and the council treat closed sessions as an event that someone other than the council itself convenes. That is, Postema’s phrasing suggests that council may decide to attend a closed session that exists apart from their own decision to vote to hold a closed session during one of their regular open meetings.

This concept of a closed session as an event that is conceived somehow external to the council – which someone else besides the council convenes and invites the council to attend – possibly stems from the practicalities of allowable closed session subject matter, as we’ve already listed out.

For example, an opportunity to sell or buy land might not be conveyed by a real estate professional directly to city council members. It’s reasonable to contemplate that the city administrator might receive an inquiry about real estate and then ask the council to convene a closed session so councilmembers can discuss it. The impetus to discuss pending litigation in a closed session logically originates with the city attorney, not the city council. Of course, by statute it’s the city council that must convene a closed session – by taking a roll call vote to do so.

So what about closed sessions based on discussion of attorney-client privileged communication – what should the impetus logically be for that kind of session? Based on prior court decisions, it’s clear that the impetus for an attorney-client privileged-based closed session should most naturally come from councilmembers, not from the city attorney. To see this, consider that:

• An attorney-client privileged-based closed session cannot be used just to hear oral advice from legal counsel. (Booth Newspapers v. Wyoming City Council)
• An attorney-client privileged-based closed session must be based on written material that is attorney-client privileged. (Booth Newspapers v. Wyoming City Council)
• The discussion in an attorney-client privileged-based closed session must be strictly related to the meaning of legal advice in the written communication. (State of Michigan v. Whitney)

Based strictly on the case law then, the only legitimate use by a public body of a closed session based on attorney-client privileged communication is for members of the body to discuss the meaning of legal advice in a written document.

As the affidavit of mayor John Hieftje makes clear, the impetus for holding a closed session on July 19 did not stem from a desire on the part of the mayor and other city councilmembers to discuss the meaning of legal advice in the May 28, 2010 memo, but rather was prompted by citizen complaints about medical marijuana businesses in their neighborhood:

4. On July 14, 2010 I received a complaint from a resident about medical marijuana dispensaries and forwarded it to staff at the City and Councilmembers Teall and Higgins. (attached)

5. On or about July 15, 2010, I requested that the City Attorney discuss with the City Council his prior legal advice memorandum dated May 28, 2010 concerning medical marijuana dispensaries and related legal issues in a closed session on July 19, 2010. (I had also initially requested the City Attorney prepare this legal advice memorandum at some point in the spring, 2010.)

Hieftje’s affidavit does not indicate that there was any lack of clarity on his or any city councilmember’s part about the meaning of the legal advice in the May 28 memo. The affidavits of councilmembers show that only two councilmembers spoke during the July 19 closed session – Sabra Briere (Ward 1) and Marcia Higgins (Ward 2) – and that they’d made comments in response to the city attorney, not asked questions. The rest of the time was taken up with the city attorney talking.

But a closed session is not a time for a city attorney to simply recapitulate orally what he’s already written. Assistant city attorney Abigail Elias acknowledged this in her remarks before the court on Jan. 18:

It is not a time for an attorney to read what he or she has written to the council.

And based on prior case law (Booth Newspapers v. Wyoming City Council ), a closed session is also not a time for the city attorney to render oral advice. Based on State of Michigan v. Whitney, a closed session is a time for councilmembers to discuss the meaning of the legal advice contained in a written communication. Indeed, as Elias put it during the Jan. 18 hearing [emphasis added]:

It is a time when there can be consideration and discussion of that written advice and as we all know, discussion requires some give and take, questions, answers. If there are none then there are none.

But if there were no questions from councilmembers, it’s not clear why the city attorney was talking at all. On entering the closed session, if it was apparent that councilmembers had no questions or uncertainties about the meaning of the legal advice contained in the May 28 memo, then the closed session should have ended – it should not have lasted even seven minutes. The council conducted a closed session on May 4, 2009 that lasted only two minutes.

Legal Issues: Was a Decision Made?

Instead of ending, the closed session continued, with the city attorney apparently using the opportunity to ask for and receive direction from the council to proceed down a path that would include developing local legislation regulating medical marijuana businesses. We base that assertion on the statement of Stephen Rapundalo (Ward 2) made at the Aug. 5, 2010 council meeting:

In fact, this was discussed at our last meeting and a directive was given to the city attorney at that time to bring this forward to this meeting tonight and I believe everybody was in the room when that was indicated.

Later, at the Sept. 7, 2010 council meeting, Rapundalo claimed that his original statement was a misrepresentation. But at the time of his statement on Aug. 5, no councilmember objected to Rapundalo’s characterization – nor did city attorney Postema. Only when threatened with a lawsuit did Rapundalo’s story change, leaving several questions unanswered.

At the Jan. 18 hearing, Elias tried to brush off Rapundalo’s original statement as simple misspeaking in the spontaneity of the moment:

They often have to be much more spontaneous at a council table. So we cannot hold them to every, single minutia of every statement, and if they want to correct a statement, that’s fine. It does not make them a liar. It does not make them untrustworthy. It does not make them an exaggerator or a falsifier.

We have no way of knowing if Judge Morris reviewed the video record we provided for her consideration. But if she did, we don’t think she could have found Elias’ suggestion plausible that Rapundalo appeared to be only guilty of spontaneous misspeaking.

Rapundalo made his remarks not in the context of a spontaneous back-and-forth interaction, but rather in the carefully controlled environment of the council’s parliamentary procedure. Remarks from Carsten Hohnke (Ward 5) and Margie Teall (Ward 4), to which Rapundalo was clearly responding, had come several minutes prior to the mayor’s giving Rapundalo the floor to speak. So there was adequate time for Rapundalo to weigh his remarks well in advance. He had additional time to reconsider the accuracy of what he said between the time he made his remarks and when the council later recessed, during which time he told The Chronicle he’d been talking about the July 19 closed session.

Postema told our legal counsel before we filed the lawsuit that we would have no way of proving that Postema or anyone on the council had even heard what Rapundalo had said on Aug. 5, 2010, or had understood what Rapundalo had meant, even if they’d heard it.

But in fact, the Community Television Network (CTN) local cable footage of that meeting shows Rapundalo’s Ward 2 colleague Tony Derezinski, seated to Rapundalo’s right, clearly nodding along to Rapundalo’s remarks.

Derezinski attended the Jan. 18 hearing. After the judge had ruled, The Chronicle asked Derezinski why he’d nodded in agreement with Rapundalo at the Aug. 5 meeting, if Rapundalo himself had later claimed his own remarks had been a misrepresentation. Derezinski replied, while still standing in the courtroom: “I wasn’t nodding.” Here’s the footage:

Further, after the Jan. 18 hearing, a council source told us that their recollection was that Postema had, in fact, used the July 19 closed session to ask for direction from the council; that he received that direction from Marcia Higgins (Ward 4), who told him she wanted a proposal for an ordinance drafted; and that she said wanted it to come before the council at the earliest possible occasion – the next meeting.

So, more plausible than councilmembers’ conclusory statements that there was no decision made at the closed session is our theory that a decision was made to proceed with a legislative strategy of developing local legislation to regulate, not ban, medical marijuana businesses.

We imagine it was similar to the interaction Postema and Derezinski had during the open session of the council’s Oct. 18, 2010 meeting, when Postema asked for direction on developing a licensing scheme for medical marijuana businesses, and Derezinski gave it to him. The step of getting direction is not a formality – it’s a requirement of the council’s rules, which state [emphasis added]:

RULE 13 – Ordinances, How Introduced
Proposed ordinances shall be introduced by one or more individual members of Council. Ordinances may be referred to any or all of the following: the City Attorney, the City Administrator, appropriate agencies, and Council committees, for study and recommendation.

The council’s apparent consensus, which we believe was reached at the July 19 closed session, thus effectuated the public policy that the city would enact some kind of ordinance to ensconce medical marijuana businesses in a local regulatory framework. In reviewing our arguments made to the court, we think we could have done a better job of identifying this as the public policy that the council effectuated during the July 19 closed session. An alternative policy the council could have effectuated would have been to acknowledge the supremacy of federal law in matters related to marijuana, as some communities in Michigan have done.

We think that decision, made out of public view, was a violation of the OMA.

At the Aug. 5, 2010 open session, the council then took a vote to carry that already-established public policy forward – using the mechanism of a moratorium on establishing additional medical marijuana businesses and a directive to the planning commission to develop zoning regulations for such businesses.

Elias argued before Judge Morris that even if there was an OMA violation at the July 19 closed session, the open discussions at the Aug. 5 meeting would have cured that violation:

… that was fully cured by the full open discussion of every possible aspect of the moratorium at the following council meeting.

The Chronicle’s legal counsel argued that subsequent action could not be curative, unless it were acknowledged to be a reenactment of a prior decision, in the context of the lawsuit. The actual paragraph from the OMA statute reads:

15.270 Sec. 10.(5) In any case where an action has been initiated to invalidate a decision of a public body on the ground that it was not taken in conformity with the requirements of this act, the public body may, without being deemed to make any admission contrary to its interest, reenact the disputed decision in conformity with this act. A decision reenacted in this manner shall be effective from the date of reenactment and shall not be declared invalid by reason of a deficiency in the procedure used for its initial enactment.

On the city of Ann Arbor’s interpretation of 15.270 Sec. 10.(5), a public body could routinely enter into a closed session at the start of each meeting, deliberate and vote on each item in a kind of dress rehearsal, then emerge from the closed session and conduct an open session in which all of the closed session violations would be cured, without mentioning that there was any connection at all to the activity in the closed session. That, we think, would an absurd interpretation of the statute.

Judge Morris seemed to be unaware of the existence of 15.270 Sec. 10.(5) when she asked Elias: “Under the statute a violation can be cured by such a subsequent event?” So to the extent that Morris even weighed the possible curative powers of the council’s Aug. 5, 2010 open session decision, she obviously disagreed with our interpretation of the statute.

Legal Issues: Purpose for Closed Session

Morris also apparently disagreed with our position that a closed session must be limited to the purpose that is declared when a public body votes to go into the closed session – even if the way that the closed session activity strays from its purpose might not constitute an OMA violation on its own. For example, all 11 councilmembers might decide they want to plan a birthday party together – they could meet out of view of the public to do that without posting any notice or announcement, or keeping any minutes.

But it’s our contention that planning a birthday party could not legally take place in a closed session of the city council – even though birthday party planning itself, when undertaken by a quorum of the council, would not constitute a violation of the OMA. Birthday party planning is simply not within the set of narrowly prescribed activities that are allowable during a closed session. So if a city council wants to plan a birthday party at one of its meetings, then it must do so during the open session of a meeting.

Morris clearly disagreed with us on that point, by saying she felt agenda setting, for example, would be allowable in a closed session without violating the OMA, even though agenda setting is not delineated in the statute among the set of allowable activities in a closed session. Morris stated at the Jan 18 hearing:

But if it was a resolution or bringing it forward sounds to me like putting it on the agenda. In this Court’s opinion … that by itself is not a violation of the Open Meetings Act …

Legal Issues: Statement of Purpose a Closed Session

If there’s been some improvement in the city council’s conduct regarding closed sessions, then it could be due to the fact that city attorney Stephen Postema might finally be starting to take seriously the idea that the council should at least have a clear understanding of what the purpose of a closed session is planned to be, before voting to go into closed session.

But based on an exchange between mayor John Hieftje and the city attorney at the council’s Dec. 4, 2010 meeting, Hieftje at that point didn’t quite seem to grasp the statutory requirement of stating exactly what the purpose of the closed session will be. A transcription from that meeting:

Hieftje: Are there communications from the city attorney?
Postema: No, mayor.
Hieftje: Other than that we have a closed session.
Postema: Yes, we do.
Hieftje: I was afraid of that.
[clerk's report accepted; opportunity for public commentary offered]
Hieftje: Seeing no one, would someone please move to go to closed session under the Michigan Open Meetings Act including, but not limited to labor neg…
Postema: … Nuh wait, this is on uhhh, pending litigation only, which is the middle one.
Hieftje: Limited to pending litigation. And attorney-client privileged communication.
Postema: No, it’s only under pending litigation, which is under the Open Meetings Act uh 15.268(e).
Hieftje: I was just trying to cover them all there.
Postema: Alright.

For Hieftje, the stated reason to go into a closed session can apparently include whatever grab-bag of reasons is allowable under the statute – without attention to what the actual purpose of the closed session is planned to be. If you “cover them all,” there’s less clarity for everyone about what the actual purpose of the closed session is, and that set of circumstances is more likely to result in violations of the OMA like the one that we believe occurred on July 19.

Legal Issues: Requirement of Written Communication

If the stated purpose of a closed session is to discuss attorney-client privileged communication, then based on Booth Newspapers v. Wyoming City Council, together with State of Michigan v. Whitney, the closed session discussion must pertain only to the meaning of specific legal advice contained in written communication.

So any councilmember voting to enter such a closed session could and should reasonably wonder: What written document will form the basis of our discussion, and do I have a copy of that document that I can refer to during that discussion? Of course, the statute does not explicitly require that members of a public body must be staring intently at a copy of the written communication during the closed session.

But based on the councilmember affidavits, plus statements made to The Chronicle by more than one councilmember, no one at the July 19 closed session had any written documents that were visually accessible to them. Indeed, it’s reportedly never the case that anyone ever has any written material in front of them for Ann Arbor city council closed sessions. Postema’s affidavit claims: “As is my practice, I had in my possession the attorney-client communications provided to the City Council …”

Having communications in your possession is a fairly capacious concept, ranging from (1) having a smart phone in your pocket through which you could download the documents, to (2) clutching a sheaf of papers and referring to them visually while you are speaking.

The fact that Postema had an opportunity to describe specifically how he visually appealed to the communications he was purportedly discussing with the council, but did not offer such a description, we conclude that perhaps he simply had the documents in his briefcase. It strikes us as absurd to think that a group of people could claim to be discussing a complex legal document without anyone in the room having an easily viewable copy of the document.

Of course, neither the statute itself, nor subsequent court cases, demand that a physical copy of the document be present in a closed session based on discussion of attorney-client privileged communication. Elias put it this way, in arguing before Judge Morris at the Jan. 18 hearing:

… there is nothing in any of the cases that says every member of the council must be clutching that written communication in their hands throughout the closed session … I don’t know what law he thinks he’s relying on that says they have to have written communication in front of them while it’s being discussed. It frankly isn’t there, and that is not a requirement of the Open Meetings Act.

While it’s not an explicitly stated requirement to have the document under discussion visible, it’s certainly hard to see how the spirit of the statute is served by members of a public body who use the existence of a written document – somewhere or anywhere in time and place – as a justification to have a closed session conversation based on that document.

We see this situation as analogous to public notice posting requirements of special meetings, as specified in the OMA. The statute only requires that a public notice exist somewhere at a public body’s principal offices. But the Attorney General’s Opinion 5724 introduces a notion of “accessibility” that requires the posting be accessible for the entire 18-hour posting period. It’s not enough for the posting to exist somewhere in the building – especially if the building could be locked. That would not serve the spirit and purpose of the statute.

Extending the reasoning in Opinion 5724 only slightly, we think it does not serve the spirit and purpose of the statute for a public body to be able to hold a discussion in a closed session about the meaning of legal advice contained in written communication, without that communication being accessible to members of the body. So while there’s no “clutching requirement,” any reasonable interpretation of the law and subsequent court cases would suggest there is an accessibility requirement – which the Ann Arbor city council did not meet on July 19. Obviously, Judge Morris did not agree with us on this point.

Legal Issues: Completeness of Affidavits

Because Judge Morris did not grant us reasonable discovery in this case, we did not learn until a few weeks after the hearing that the affidavits submitted by the city did not tell us or Judge Morris the complete story of the May 28 memo.

It had struck us as odd that in the course of communications between our counsel and the city attorney’s office, the May 28 memo was not ever mentioned as the basis of discussion for the July 19 closed session. The time lag between May 28 and July 19 also struck us as odd. And by late January, after the hearing, we’d pieced together substantial evidence that the July 19 closed session was not the first occasion on which the city council used a closed session to discuss the May 28 memo. Confronted with a specific question from our legal counsel on that issue, assistant city attorney Abigail Elias admitted:

… the May 28, 2010, privileged memorandum that was identified in the course of the recent litigation, was discussed at the second of two closed sessions on June 7, 2010;

The narratives in affidavits by mayor John Hieftje and city attorney Stephen Postema mention a specific request made by Hieftje to Postema a few days before July 19 to discuss the May 28 memo at a closed session on July 19. But neither of them mention the fact that the council had already discussed the May 28 memo at the June 7 closed session – for 13 minutes.

Certainly the existence of that previous closed session was relevant for the court’s understanding and evaluation of the issues and claims involved in our lawsuit. For example, Elias could not have made the same argument she made to Judge Morris against allowing depositions to proceed, if Hieftje and Postema had provided affidavits that included the relevant fact of the June 7 closed session. Responding to our legal counsel’s argument that the requested depositions would be short – only 45 minutes – Elias stated:

… he claims that they’re in theory short because they’re only 45 minutes. In this case where the only issue is what happened during the course of seven minutes, forty-five minutes seems to be nine times too long for each of those depositions.

Certainly Elias and Postema might try to argue that the only issue before the court was what happened on July 19, not any other closed session, and that’s why they were not required – by the ethics of their profession and Postema’s sworn statement that his affidavit was complete – to disclose the fact of the June 7 closed session about medical marijuana policy, based also on the May 28 memo, just as the July 19 closed session was purported to be.

For us, however, that argument would not survive a basic straight-face test. We think Judge Morris allowed her court to be misled by Postema and Elias.

Legislative Remedies

One possible path forward would have been to appeal Judge Morris’ ruling in the hope that we could establish as a matter of legal precedent that the way the Ann Arbor city council conducted its July 19 closed session violated the OMA. We ultimately decided that the narrow range of improvements in the behavior of public officials that are achievable with such a strategy would be fairly limited.

Based on a conversation we’ve had with Jeff Irwin – who was elected in November 2010 as state representative for District 53, which covers most of Ann Arbor – we think our best shot to achieve meaningful and lasting reform is to change the way the law is written with updated legislation.

That is, instead of trying to change the law by setting legal precedents in court, we will place our faith in the possibility of legislative change. One could imagine an OMA statute, for example, that simply did not include the attorney-client privileged communication exemption at all.

Irwin has already taken a first step. In his first month in office he sent a bill request to the Legislative Services Bureau (LSB) for legislation that would update the Freedom of Information Act. Each representative is allowed to make 10 bill requests in the first month of a term and five each month after that. So reform of open government laws is high on Irwin’s list of priorities.

Irwin reported that the LSB had advised that what he had in mind would likely need two bill requests – one for the Freedom of Information Act and one for the Open Meetings Act. He indicated that the legislature’s agenda will first handle the budget as a top priority – that’s fitting and proper – but reform in open government laws will get their due later in the year.

We’re counting on Irwin to generate some good news about open government in Michigan, so that we can report about progress in this area. We’ll sure be watching for it.

Despite dire forecasts, snowfall amounts by Wednesday morning were closer to five inches than 13 inches. But some of the words in this article were written before the snowstorm ended. And as this photo shows, it was not hard to find some deeper drifts. (Photo by the writer.)

It’s also a time that we highlight, with gratitude, our local advertisers, and ask readers to consider subscribing voluntarily to The Chronicle to support our work.

Less often than I would like, I use a membership-funded co-working space on Main Street in downtown Ann Arbor called The Workantile Exchange to write and edit the material in this publication.

But even when I do work there, I am not all that productive, if productivity is measured by the number of words I type. Of course, I do type some words there. Some of these very words you are reading right now were typed at the Workantile. But number-of-words-typed is not how I measure the Workantile’s value to me.

So how do I assess the value of what I accomplish there?

It’s like describing the result of a snowstorm.

One approach to assessing the effect of a snowstorm would be to stay inside all night as the snow accumulates, head out when the snow stops, jam a yardstick into a drift and announce: It snowed 13 inches! After the storm, anyone could take that external measurement and give that report.

A different approach to assessing a snowstorm would be to lie down on the ground outside in the middle of the storm and experience each flake as it alights on top of you, one on the end of your nose, one on the end of your toes, until the snow stops falling, and then – assuming you have not frozen to death in the meantime – report: I gradually became covered with a blanket of snow; the first flakes were downy and fell lazily onto my eyelashes, while later in the storm, they were fine and stung my cheeks when they landed, whipped by the wind!

If you weren’t lying on the ground outside during the snowstorm, you couldn’t have measured it that way.

Even if that would be a dumb way to measure snowfall – and to be clear, I think it would be – it’s a perfectly sensible approach to measuring the value of my exposure to the expertise stored in the snow cloud of the Workantile membership.

For example, yesterday I found a window table where I could work – right behind the new poster that reads “Now Accepting New Members” – and began updating the description of the various RSS feeds available for The Chronicle.

Soon I spotted a newish Workantile member who’s an accountant here in town, and I waved him over. I filled him in on the city council’s first budget work session of the season that had taken place the night before. I was keen to get his take on the city CFO’s explanation of how budget reduction targets work. When the city sets a reduction target of 2.5% for every department, that doesn’t mean that a department’s budget next year will be 2.5% less than this year. Instead, what the city does is consider a department’s programs and activities this year, project the cost of those same unmodified activities for next year, and then ask a department to reduce that projected cost by 2.5%.

So a department’s budget could increase, even while it meets a 2.5% reduction target.

The oversimplified example we talked through was this: Say a department has a $100 budget for electricity this year; if electricity costs are projected to increase such that the same kilowattage you get for $100 this year will cost $105 next year, then the department’s 2.5% reduction target could be met by setting its electricity use to $102 next year. The budget increases by $2, but the department has met its reduction target.

A department might achieve that electricity savings, for example, by making sure that next year workers have their computers configured to go into sleep mode after five minutes of inactivity, instead of after an hour.

By talking this through with a local accountant, who was accessible to me via the Workantile, I got a deeper understanding of these budgetary concepts. And I think that deeper understanding will serve me well as I write about that budget work session.

The Workantile membership includes a range of independent workers – from novelists and attorneys to filmmakers and computer programmers. They are generally a cordial, friendly, and talented bunch of people. And on occasion I’ve taken advantage of their talents and expertise in the same way that I did with the accountant.

So the value of my time spent at The Workantile is not measured by asking: How many words did you write? How deep was the snow in that spot over there? It’s measured by the increased depth of understanding in various subjects that I can achieve, by letting the expertise of other members accumulate until it covers me from head to toe.

At The Chronicle, we treat news sources in a way that’s similar to how I tap Workantile members’ knowledge and experience. We encounter our news sources in person quite frequently at the public meetings where they’re supposed to do their work. And our reportage is oriented primarily to what these news sources say and do during these public meetings – because we believe that’s where the public’s work should be done, and if elected officials know that people are paying attention, they might conduct more of their deliberations at these public venues. Most often when we talk to or email a source outside a public meeting, we are not looking for a quote or an official statement. We are looking for a conversation that puts us in a better position to understand our subject matter.

That’s why a Chronicle article is not a vehicle for conveying to readers a set of quotes and official statements from sources collected outside the context of public meetings. That’s like trying to characterize the essence of what a snowstorm was like by reporting that, after it was over, when you jammed a yardstick in one of the drifts, it measured 13 inches.

Instead, a typical Chronicle article about a public meeting strives to convey all the layers in the accumulation of the meeting’s discussion. It’s like reporting on a snowstorm by lying down outside during the storm and letting the snow blanket you. Yes, it might seem a little crazy, not to mention a little cold.

But if you invest in that effort, you’re in a perfect place to make a snow angel.

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

A draft of the resolution with the recommendation was to be sent to all board members for review late Wednesday. If the full DDA board approves the resolution at its next meeting on May 5, city councilmembers who are up for re-election this year may not have to campaign under the shadow of police and firefighter layoffs. The $2 million from the DDA would allow the city council some flexibility in amending the FY 2011 city budget, before it is adopted at the council’s second meeting in May. That budget was formally introduced at the council’s April 19 meeting and showed a roughly $1.5 million deficit. It also included some police and firefighter layoffs.

But how much of the $2 million will be put towards avoiding layoffs versus offsetting the deficit is far from clear. Two city councilmembers attended the DDA operations committee meeting: Sandi Smith, who also serves on the DDA board; and Margie Teall, who serves on the council’s sub-committee appointed for the purpose of renegotiating the parking agreement between the city and the DDA. Last year, the city council and the DDA board each appointed a committee for the purpose of renegotiating that agreement.

At Wednesday’s meeting, Smith said it was not certain whether layoffs could be avoided with the $2 million payment or if so, how many could be avoided. Smith’s contention that there was no guarantee the $2 million would avert layoffs came in response to one of several sharp questions put to his fellow DDA board members by Newcombe Clark. Clark began the discussion by asking if the $2 million was tied to anything.

In the course of the discussion, it was made clear that the $2 million would be tied neither to a promise of no layoffs at the city, nor made contingent in any way on specific progress towards a renegotiation of the parking agreement between the DDA and the city.  It would also not be tied to the implementation of any part of a “term sheet” that will form the basis of the city-DDA discussions in the coming months.

Key aspects of that “term sheet” are the idea that regular payments will be made to the city, that the DDA will assume some responsibility for parking enforcement, and that the city will be “held harmless” in any revenue loss associated with cessation of its enforcement activities.

But by the end of the discussion, Clark had eked out a victory of sorts: a provision in the draft resolution that ties the $2 million to a public process, from this point forward, for the city-DDA negotiations. They have been going on a few months now out of public view. In that regard, the resolution can be fairly be analyzed as a fresh commitment to the committee structure, with its associated expectations of public process, that the two bodies had already adopted, but not implemented for discussing the parking agreement.

Background: The Parking Agreement of 2005

We begin with the basic background on the parking agreement between the city and the DDA, which was a $10 million deal struck in 2005, extending through 2015. It’s that deal that underpins the current discussion on the $2 million payment the DDA is now contemplating.

Since 1992, the DDA has administered the city’s parking system on properties owned or leased by the city of Ann Arbor. Set to expire in 2012, the agreement was extended in 2005 through 2015 – in light of the financial challenges the city faced in that year – to provide additional revenue to the city. In broad strokes, it was a $1 million-per-year deal, with the added wrinkle that the city could request up to $2 million from the DDA in any given year, provided the total over 10 years did not exceed $10 million. From the DDA board’s 2005 resolution:

Whereas, The City is facing a funding crisis and has asked the DDA to significantly increase its payments under this Agreement in order to help the City address this crisis;
Whereas, The City and the DDA agree that the DDA can afford this increase only if the City and DDA cooperate to increase revenues into the DDA;
Whereas, Both the City and the DDA agree that the DDA is a separate governmental entity that has a statutory responsibility to support and expand community values and services in the City’s downtown and near downtown neighborhoods;
[...]
3. Increase the annual rental fee paid to the City for use of City parking facilities to $1,000,000.00/year beginning with the 2005/06 fiscal year, for a total of $10,000,000.00 during the ten year period of the Agreement.
4. During the period of July 1, 2005 to June 30, 2015, provide the City the opportunity to draw an advance on future rent not to exceed one full year’s rent, thus providing for up to two year’s rent on any year. Any request by the City for pre-payment must be made to the DDA by December 1st of the preceding year so as to be included in the DDA’s annual budget.

The situation now confronting the city is one anticipated by DDA board member Rob Aldrich in 2005: What happens if the city requests $2 million each of the first five years? From the board minutes of the March 2, 2005 meeting:

Mr. Aldrich asked if it would be possible for the City to draw the full $10 million in the first 5 years; Mr. Solo said yes. Mr. Aldrich asked what would happen in year six, which is to say, would the City be satisfied to receive no further rent for the remaining five years. There was no response to this question.

In the city’s fiscal year terms, FY 2011 is “year six.” At that March 2, 2005 meeting, representing the city was councilmember Leigh Greden (Ward 3) who was filling in for mayor John Hieftje, who sits on the DDA board as mayor.

Other members of the DDA at the time were: Ron Dankert, Bob Gillett, Rene Greff, Roger Hewitt, John Hieftje, Sandi Smith, Dave Solo, Rob Aldrich, Fred Beal, Gary Boren, Dave DeVarti, Leah Gunn. Of those, remaining now in 2010 are Hewitt, Hieftje, Smith, Boren and Gunn.

Background: Foundations of Good and Bad Faith

Based on the March 2, 2005 DDA board meeting minutes, then-councilmember Leigh Greden, who was filling in for mayor John Hieftje at the board meeting, gave an assurance on the part of the city that it was not the intent to ask for $2 million beyond the first year of the agreement [emphasis added]:

Mr. Solo said that approving this resolution does not preclude renegotiations at any time, by either the City or the DDA. Mr. Greden commented that the City would have to agree to renegotiate in the future, and that it was important to note that it was not the intent of City Council to rely on this money more than to get them through the next few years. City Administration and Council have put in place short- and long-term strategies to solve the structural budget deficit, and have budgeted for $2 million only in the first year.

The fact that the city ultimately did request $2 million each of the first five years is one possible reason for a perception by some DDA board members of poor faith on the part of the city.

Another reason some DDA board members might perceive a historical lack of good faith on the city’s part can be traced to a DDA development plan for three different downtown parcels that was in the works back in 2005, in the same time frame as the parking agreement was renegotiated. It was known as the “3-Site Plan.”

The 3-Site Plan was an effort to develop city surface parking lots, including lots at First & William, First & Washington and the Kline’s lot – on the east side of Ashley Street, between William and Liberty. The concept underpinning of the 3-Site Plan was that parking could be decoupled from development – build a parking structure at First & William and free up the other two sites for development without the constraint of building on-site parking.

But instead of pursuing the 3-Site Plan in 2005, Ann Arbor’s city council opted to create a Greenway Taskforce to explore the possibility of incorporating the First & William lot into a greenway along the Allen Creek creekshed. And in July 2009, the city council passed a resolution  expressing the desire to see the lot become a park, when money for environmental cleanup could be identified. [Chronicle coverage "First & William to Become Greenway?"]

The First & Washington site now has an approved site plan for City Apartments – a combined residential/parking development by Village Green. Nothing has been built because of a lack of financing for the developer. Its site approval has been extended by the city administrator until June 30, 2010, after which additional city council action will be required to allow more time for the project to move forward. No similar progress has been made on the Kline’s lot.

The reporting of Tom Gantert of The Ann Arbor News during 2005 chronicles the struggle between supporters of a greenway and supporters of the 3-Site Plan, which was championed by the DDA, through the better part of the year. [Ann Arbor News archives from 2003 until it closed last year are available from the Ann Arbor District Library's online research portal.]

The friction that year between greenway and 3-Site Plan supporters was reflected in friction between DDA board members and city councilmembers, as well as between the city’s planning commission and the city council. At the time, mayor John Hieftje was accused of trying to prevent the city’s planning commission from holding its own public hearing on the matter, in part by preventing CTN coverage of their planned hearing.

The attitude of some at the DDA towards the idea of decoupling the First & William parcel from the 3-Site Plan was essentially that it would be better to start from scratch: From a June 28, 2005 Ann Arbor News article by Gantert:

[DDA executive director Susan] Pollay did show the DDA’s commitment to its plan when she said was asked about “unhitching” First and William from the proposal.

“Unhitching a piece of it?” Pollay asked, repeating the question. “You may as well start afresh.”

Hieftje said that was the first time he’d heard Pollay say it’d be better to scrap the plan than break up what has been pitched as a “three-site plan.”

But by the end of 2005, a 2-Site Plan compromise had evolved. It involved development just of the Kline’s lot and the First & Washington lot.

Do some at the DDA have lingering ill feelings because the outcome of the political process didn’t go their way on the 3-Site Plan? Yes – but it’s about more than a lost political battle.

It’s the fact that when the parking agreement was negotiated in 2005, there was a conscious expectation on the part of the DDA that if the $10 million parking agreement was approved, the city council would approve the 3-Site Plan. In an April 28, 2010 email sent to all members of the current DDA board, plus current city councilmembers, former DDA board member Rene Greff put in writing what she’d told The Chronicle a couple weeks earlier in a telephone interview. [Though she no longer serves on the DDA board, Greff attended Wednesday's operations committee meeting.]

Specifically, Greff writes that in 2005 the DDA’s negotiating team saw a link between the parking deal and the 3-Site Plan:

But the council members on our committee cautioned that we couldn’t link the increased rent with the 3 site plan in writing because that would make it look like the DDA was bribing council for passage of the three site plan. And besides, we were all working in good faith and knew that the city was going to approve the 3 site plan.

But those 2005 negotiations were conducted out of public view. Greff told The Chronicle that numbers of councilmembers and DDA board members present were consciously chosen to be fewer than a quorum to avoid Open Meetings Act requirements, and that the committee had chosen meeting locations to avoid being discovered by Gantert. In her April 28, 2010 email, Greff calls the meetings “clandestine.”

In her phone interview with The Chronicle, Greff allowed that she’d been complicit in keeping the meetings out of public view. She said that as a relatively new member of the DDA board, she’d relied on Leigh Greden’s assurance that “this is how things are done,” with things worked out in private before they’re made public.

The lesson she drew, she said, was that to protect the interests of the DDA, keeping the process public was important.

Committees, Expectations of Public Process

Although the process that began in January 2009 to renegotiate the parking agreement between the city and the DDA began with the expectation of a public process, up to now it has been shielded from public view. And Wednesday’s operations committee found DDA board members attributing that shielding to the lingering hurt feelings from 2005.

How did the renegotiation process start? It can be traced to the fact that the city of Ann Arbor plans in two-year financial cycles, even though it adopts budgets one year at a time. Back in January 2009, councilmember Sandi Smith (Ward 1) noticed that for the FY 2011 plan, which was the second year in the 2010-11 two-year cycle, the city had “penciled in” a $2 million payment from the DDA – despite the fact that the existing parking agreement did not require such a payment.

Smith brought forward a resolution to the city council, which it passed, asking the DDA to begin a discussion. The DDA responded by appointing a committee tasked to negotiate the parking agreement with a corresponding committee of the city council. The council was not swift in appointing its own committee, with some councilmembers expressing reservations about the membership on the DDA’s committee.

At Wednesday’s operations committee meeting, DDA board member Newcombe Clark observed that for 15-months, the city council had been unwilling to engage in dialog, partly because they didn’t like who would be sitting across the table from them.

Russ Collins responded to Clark, contending that he did not know that was the case, saying he had not heard that or read that, allowing that perhaps he should read other things.

Reading a timeline overview of the relevant history, which summarizes material The Chronicle has published twice previously, confirms Clark’s claim [See Chronicle coverage: "Parking Report Portends DDA-City Tension" and "DDA Retreat: Who's On the Committee?"]:

• Jan. 20, 2009: City council passes a resolution asking the DDA to begin discussions of renegotiating the parking agreement between the city and the DDA in a mutually beneficial way.
• March 4, 2009: DDA board establishes a “mutually beneficial” committee to begin discussions of the parking agreement between the city and the DDA. On the committee: Roger Hewitt, Gary Boren, Jennifer S. Hall, and Rene Greff. The DDA’s resolution establishing their committee calls on the city council to form its own committee.
• May 20, 2009: During the mid-year DDA retreat, mayor John Hieftje states publicly that city councilmembers object to the membership of Jennifer S. Hall and Rene Greff on the DDA’s “mutually beneficial” committee.
• June 3, 2009: DDA board chair Jennifer S. Hall removes herself from DDA’s “mutually beneficial” committee, replacing herself with Russ Collins.
• June 15, 2009: Mayor John Hieftje nominates councilmembers Margie Teall (Ward 4), Leigh Greden (Ward 3) and Carsten Hohnke (Ward 5) to serve on the city council’s “mutually beneficial” committee, and they’re confirmed at the city council’s July 20 meeting.
• July 1, 2009: DDA board chair Jennifer S. Hall appoints Sandi Smith to replace outgoing DDA board member Rene Greff (whose position is filled with Newcombe Clark) on the DDA’s “mutually beneficial” committee. Smith is also a city councilmember, representing Ward 1.
• August 2009: Leigh Greden is defeated in the Democratic primary by Stephen Kunselman.
• August-December 2009: Sandi Smith, the chair of the DDA’s “mutually beneficial” committee, reports at each monthly DDA board meeting that there is nothing new to report.
• Dec. 5, 2009: Dissolution of the DDA is included in an “everything is on the table” list for discussion at the city council’s budget retreat.
• January-April 2010: Roger Hewitt reports at monthly DDA board meetings that only informal discussions are taking place.

As The Chronicle has reported previously, the expectation that the two committees would meet publicly rests on a 1991 city council resolution stipulating that even sub-committees of public bodies that do not constitute a quorum are expected, to the best of their abilities, to conform with the Open Meetings Act:

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.

Expectations of Public Process Not Met

No meetings of their respective “mutually beneficial” committees have ever been acknowledged by either the city council or the DDA board at any of those bodies’ regular meetings. However, starting in early January of this year, members of the committees – with the addition of councilmember Christopher Taylor, who was not appointed as part of the council’s committee – began the work of renegotiating the parking agreement in the guise of a “working group.” From the “term sheet” memo that was circulated at Wednesday’s operations committee meeting:

MEMORANDUM
To: DDA Board
From: Gary Boren
Russ Collins
Roger Hewitt
Carsten Hohnke
Sandi Smith
Christopher Taylor
Margie Teall
CC: Roger Fraser
Susan Pollay
Re: City of Ann Arbor – DDA Operations
Date: April 28, 2010

In conversations beginning after the New Year, Roger Hewitt approached a number of us in order to discuss additional areas of possible cooperation and resource allocation between the DDA and the City of Ann Arbor. As a result of these conversations, this working group formed to sketch the framework of what could be a new relationship between the DDA and the City. That general framework is described below.

The term “working group” in this context was first encountered by The Chronicle in conversation with Christopher Taylor, when he arrived on the third floor of the Larcom Building on Friday afternoon, April 16 to attend a meeting of the “working group.” Taylor seemed visibly surprised to see The Chronicle waiting there. We had learned of the scheduled meeting the previous Wednesday, when Russ Collins mentioned it at the DDA board’s partnerships committee meeting.

Asked if he was also there to attend the meeting of the “mutually beneficial” committees, Taylor rejected the idea that the committees were going to meet, saying that it was “more of a working group.” He’d been asked to participate by Roger Hewitt, Taylor said.

As The Chronicle previously reported, city administrator Roger Fraser then refused to allow The Chronicle to attend. In barring The Chronicle from the meeting, Fraser rejected the applicability of the 1991 council resolution that requires the meetings of city sub-committees to comply with the Open Meetings Act, contending it was not a sub-committee of the council that was meeting.

Present in addition to Fraser were six others: Susan Pollay, executive director of the DDA; DDA board members Roger Hewitt, Sandi Smith and Russ Collins – all members of the DDA’s committee established to discuss the parking deal; and city councilmembers Christopher Taylor (Ward 3) and Carsten Hohnke (Ward 5). Hohnke is on the council’s committee, while Taylor is not. Missing from the DDA’s “mutually beneficial” committee at the meeting was Gary Boren.

In rejecting the applicability of the 1991 resolution, Fraser may have been relying on the idea that Smith, Taylor and Hohnke – though a committee-like subset of councilmembers that were part of a “working group” –  did not constitute the appointed sub-committee of the council. The DDA’s committee, however, had three of its four members present, constituting a quorum of its members.

Following Wednesday’s DDA operations committee meeting, Sandi Smith told The Chronicle that a meeting that included the city’s committee did take place in the fall of 2009. However, that meeting didn’t go anywhere, she said, attributing it to Leigh Greden’s defeat in the August primary.

The work of producing the “term sheet,” Smith said, was accomplished largely through rotating one-to-one meetings, not group meetings. In explaining why the process had been kept out of the public view up to that point, Smith echoed a sentiment that Russ Collins had expressed during the meeting, when he said that the parties needed the initial privacy to get to a place where they could have a dialogue – otherwise they’d just be throwing spitballs across the table, Collins said. Collins described the “term sheet”  as a “beachhead” for communication, and the conversation needs to unfold now publicly.

Hearing the phrase “beachhead” from Collins more than once prompted Smith to kid him: “Define that for me, Russ.”

In her post-meeting conversation with The Chronicle, Smith attributed that initial barrier to communication between the city and the DDA to a “culture clash” and lingering resentment about the failure of the city council to approve the 3-Site Plan back in 2005.

Why the DDA Operations Committee Met

To set the context of Wednesday’s DDA operations committee meeting, where the recommendation to pay $2 million to the city of Ann Arbor was discussed, it’s worth reflecting on why the committee met.

The short answer is that the operations committee of the DDA always meets on the last Wednesday of the month, which works out to be the week before the meeting of the full board.

The topic of the $2 million payment may have turned up on the operations committee’s agenda in any case. But the thing that virtually guaranteed it would be discussed on Wednesday was a conversation at the end of the partnerships committee meeting two weeks earlier.

At that meeting, Newcombe Clark had questioned why the partnerships committee had not considered  a resolution to bring before the full board on the $2 million question. He noted that timing of the city’s budget process – adoption by the city council before the end of May – meant that the full DDA board would need to vote at its next monthly meeting  (May 5) on converting the $2 million contingency in the DDA’s budget to a payment to the city.

At the partnerships committee meeting, Clark questioned whether the resolution could be brought to the board without recommendation by a DDA board committee. And when it was suggested that the “mutually beneficial” committee could make the recommendation to the full board, Clark questioned whether it could do that as an ad hoc committee.

At issue was adherence to the DDA bylaws. The city of Ann Arbor’s need for the $2 million could be analyzed as a “request for funding” under the DDA bylaws:

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.

[Approval of amendments to the DDA bylaws, which have been approved by the DDA board, are on the city council agenda for its May 3 meeting. Section 10 does not contain any proposed revisions.]

At the partnerships committee meeting, the issue was settled when Clark asked for and received from the rest of the partnerships committee an assurance that there would be at least a seven-day notice of any resolution on the $2 million question. Said Clark: “I think that it’s reasonable to have seven days notice before we have an item that’s going to make the board meeting crazy.”

The seven-day assurance meant that the last opportunity for a standing committee to review the $2 million resolution before the May 5 board meeting was at the operations committee meeting.

What’s Tied to the $2 Million, If Anything?

Deliberations at the operations committee meeting began with the distribution of the “term sheet.” Several minutes went by as those who were seeing the document for the first time read through the text. It features in most significant part the idea of unifying the administration of the parking program and the enforcement of parking fines with a single entity – the DDA. That’s consistent with The Chronicle’s previous analysis of the DDA’s recent parking plan as an implicit pitch by the DDA to the city to assume responsibility for enforcement of parking rules downtown. [Chronicle coverage: "Parking Report Portends City-DDA Tension"]

The “term sheet” envisions signing an actual contract by Oct. 31, 2010, which is just before the general election in the fall.

DDA board member Russ Collins called the “term sheet” document a “beachhead” that was established to begin a dialog, one that members of the DDA’s mutually beneficial committee felt would ultimately be fruitful and beneficial. At that point, Newcombe Clark sought to clarify if the idea was to pay the $2 million because of the start to the dialog.

If it was something else besides the start to the dialog that was to result in the $2 million payment, Clark wanted to know what that was. If there was nothing else, he wanted to know what the urgency was about the timing. Collins answered that it had to do with the timing of the city’ budget cycle. Clark observed that the current city budget as proposed by the city administrator, if enacted, would include layoffs. So he asked if the idea was to make the $2 million payment in order to guarantee no layoffs.

Sandi Smith, speaking from the perspective of a city councilmember, indicated that the outcome of the community conversation over the next two weeks would affect whether there are layoffs or not – it was unsure whether the $2 million would avert layoffs, and if so, how many, she said.

If the $2 million was to be paid just because the city was now talking to the DDA, wondered Clark, what would happen in November if no progress had been made towards working out the contract?

Smith allowed that there was “an element of faith” involved. Margie Teall, who represents Ward 4 on the city council and who was also present at the table for Wednesday’s DDA operations committee meeting, indicated that the faith was based on more than just the fact that there is a great conversation going on. There was an intent, said Teall, to keep working on the plan.

Collins noted that one reason it had been important to involve the staff of the city and the DDA in the process was to ensure the continuity of work on the plan. And the idea, said Collins, was to establish a longer-term, multi-year contract – something echoed by Hewitt.

Clark then picked up the contrast between the staffs of the two organizations and the members of the two public bodies. Clark noted that there are three people involved on the city’s side who might no longer be involved after the Democratic primary election, held in August. He meant Teall, Smith, and Carsten Hohnke, all of whom will face primary challenges. [Christopher Taylor does not currently face a primary challenge; however, the deadline to submit petitions is not until May 11.] In that context, Clark wondered if there would be follow-through from new councilmembers replacing those who could potentially lose. Speaking to Smith and Teall, Clark said: “I trust your ability to follow through on these agreements, because you are there. But if you are not there …”

Clark himself has taken out petitions to run as a Ward 5 candidate, challenging Hohnke for his seat. It’s a point to which Clark would eventually return as the discussion unfolded to focus on the nature of the future meetings that would be held between representatives of the DDA and the city. Clark secured an assurance that those meetings could be attended by anyone on the DDA board, “even if we don’t like certain people or even if certain people are running against certain people.”

As Russ Collins clarified, the DDA’s working practice for the committee in the future would be consistent with the way that the DDA’s committees work in general. In particular, DDA committee meetings are noticed, open to the public and open to any DDA board member, whether they’re a member of the committee or not.

Before the operations committee reached a point of committing to a public process from this point forward, Clark floated a different idea: staggering out the payments to the city. He suggested a contingent payment schedule of, for example, $100,000 a month based on the city’s ongoing good faith efforts to negotiate the details of the contract. He went as far as to say the conversation could end right then if everyone agreed that the city would get the $2 million only on a contingent, staggered basis – that would satisfy his concerns.

Teall rejected the idea of a contingent payment, as did Smith, Leah Gunn and Hewitt, saying that the city could not budget based on that kind of contingency.

Clark then changed tack slightly, pointing out that the good faith discussions up to that point had been accessible to only some of the DDA board members and not to the public. Clark expressed his concern that the city would opt to have discussions only when they want to, and it would be closed, it wouldn’t be announced, some people would be invited, some people wouldn’t. Concluded Clark, “That is a ridiculous way to talk in good faith, in my mind.” He pitched the idea that the meetings should be open.

As the conversation seemed to stall, Collins told Clark that he sensed there was nothing that could be said to allow Clark to get past his anxiety about the $2 million. As examples of what would help him get past his anxiety, Clark then appealed to the two specific suggestions he’d made: (i) to make the $2 million payment in a contingent, staggered fashion; and (ii) to make the meetings open and public.

Collins indicated that he didn’t think anyone had a problem with future meetings being public. Teall echoed that sentiment. Clark declared that for $2 million he’d be willing to buy 12 above-board meetings that are held publicly and that will take the DDA and the city toward an agreement. Collins said he thought there was no problem with that at all. Replied Clark: “I think that there has been a big problem up to this point.”

The operations committee eventually set about sketching the language of the resolution that it would bring before the full board. Collins noted that nobody had brought a resolution to the meeting and that it had depended on the dialog of the committee. Gunn focused the committee’s attention on two “resolved” clauses that needed to be written – one to allocate the $2 million and one to establish the monthly meetings. [.txt file of the draft resolution circulated later that evening by Susan Pollay, executive director of the DDA].

The resolved clauses from the draft resolution:

RESOLVED, The DDA authorizes providing the City with $2 million in fiscal year 2010/11 with the following expectations:

• The DDA and City representatives who have developed the preliminary terms will continue to meet at least once a month to complete work on an agreement that will go to the DDA and City Council for approval, and these meetings will be open to the public, but not subject to the Open Meetings Act.
• The DDA and City representatives will aim to conclude their work by October 31, 2010, but certainly no later than the end of the fiscal year 2010/11.
• The DDA will provide the City with $2 million by providing half on July 1, 2010 and the second half no later than January 1, 2011.

The DDA’s tie of the $2 million to the public process in that draft does not bind the city council to the public meetings beyond the expectation expressed in the 1991 resolution.

Coda: Beat Cops

As the operations committee discussion of the $2 million resolution wound down, Newcombe Clark brought up the issue of downtown beat cops.

By way of background, as a part of the FY 2010 budget process – which involved early retirement incentives for police officers – dedicated downtown beat patrols were eliminated in favor of an approach where police officers would spend their “out-of-the-car” time walking downtown. Officers are supposed to spend an hour out of the car for each shift anyway, and the change was to ask them to spend it downtown. Previously, there’d been dedicated patrols for downtown – often done by bicycle-mounted police officers.

Back in 2005, besides the expectation that the city council would approve the 3-Site Plan, there was an expectation that the beat patrols downtown would also be preserved – if the DDA accepted the $10 million parking agreement. From Greff’s April 28, 2010 email cited earlier:

Just so the record is clear this journey began in 2004 when the City threatened the DDA with beat officer layoffs if we did not provide financial assistance. [...]

We would increase our rent to the City by $1 million a year. The City would not have to lay off any beat cops, and the City would pass the DDA’s 3 site plan which would add to the DDA TIF capture and ensure that we could afford to make the increased payments to the city without raising parking rates or foregoing our other priorities.

At the operations committee meeting, Clark asked whether discussing the question of downtown beat patrols was considered to be inconsistent with good faith for the future conversation of the “term sheet.” He’d been told recently at the city staff level that it was counter to good faith, and said that he’d been denied some information he needed to formulate a proposal on downtown beat patrols. Clark was assured that it was not counter to good faith, and when asked by Clark, Teall indicated that she’d weigh in with city staff to get Clark the numbers he needed.

The resolution that Clark may bring to the full board next week would call for the DDA to begin reserving $60,000 a month to fund beat patrols. Initially, the money would be sourced from the $335,000 already allocated by the DDA for the north-south Howell-Ann Arbor commuter rail project (WALLY). As the resolution draft notes, the rail project has shown little progress.