In one Oct. 7 action, the council voted to direct the city attorney to draft an opinion on the Sept. 16 confirmation vote and to file it with the city clerk’s office. In another action, taken after midnight, the council voted to reopen the agenda to add a motion to reconsider the Al McWilliams confirmation, which was then immediately postponed by a unanimous vote – until the council’s Oct. 21 meeting.

The city attorney’s opinion is supposed to answer questions that were raised about the procedure used to appoint Al McWilliams to the board of the Ann Arbor DDA at the council’s Sept. 16 meeting.

On Sept. 16, mayor John Hieftje asked the council to vote on McWilliams’ appointment after saying at a previous meeting, on Sept. 3, that he was withdrawing the nomination. Under the council’s rules, an 8-vote majority is required for confirmation of an appointment when the nomination is made at the same meeting when the confirmation vote is taken. McWilliams was confirmed on a 6-5 vote.

A “whereas” clause in the opinion resolution states that “the public good will be best served by releasing this advice to the public.” The key resolved clause, which was revised from the version initially placed on the council’s agenda, stated: “That City Council requests that the City Attorney draft an opinion by October 16, 2013 for the benefit of the public that answers whether the September 16, 2013 vote to appoint Al McWilliams to the DDA can be challenged on the grounds that the confirmation motion should have required 8 votes…”

The opinion will likely establish that it’s doubtful a successful court challenge could be brought in connection with McWilliams’ appointment – partly because it’s not clear who might have standing to bring such a suit. It will likely also simply state that a key point is that no objection was raised at the time about the validity of the vote.

Under the Ann Arbor city charter, written opinions of the city attorney are to be filed with the city clerk’s office. City attorney Stephen Postema has contended in the past that his advice memos are not written opinions under the city charter and has declined to file them with the clerk’s office.

The council has voted in the past on a resolution that would have made an attorney opinion public – on the legal basis for the Percent for Art program. That vote, taken on April 2, 2012, failed with support only from Sabra Briere (Ward 1), Mike Anglin (Ward 5) and Stephen Kunselman (Ward 3).

The Oct. 7, 2013 agenda item on the attorney’s opinion was sponsored by Sabra Briere (Ward 1) and Chuck Warpehoski (Ward 5). The vote on the resolution received support from all councilmembers in attendance except for Mike Anglin (Ward 5), who had wanted councilmembers on the prevailing side to bring back the resolution for reconsideration.

Warpehoski, who was on the prevailing side, indicated at the meeting during deliberations that he had been thinking of bringing back the resolution for reconsideration. But Warpehoski did not think it was possible under Robert’s Rules – because the appointment had already been at least partly implemented. Another concern was that a vote to reconsider, if it were to result in a failed confirmation, then might be construed as a removal of a member of the DDA board, which has a procedure outlined in the state statute. And that procedure includes the requirement of the removed member to be heard, with the removal subject to review by the circuit court.

After all the other business of the council had been transacted, after midnight, Warpehoski asked his colleagues to vote to reopen the agenda for a motion to reconsider McWilliams’ appointment. Once the motion had been made, Warpehoski indicated that he wanted some assurance on three points: (1) that there’d be support for a postponement until Oct. 21, and the council wouldn’t vote on the question that evening; (2) the vote required for confirmation at a later meeting would require  a six-vote tally, not eight – because the nomination would be considered to already be before the council; and (3) if the six councilmembers who supported the confirmation previously aren’t in attendance on Oct. 21, then there’d be support for postponement until the Nov. 7 meeting, which will be the last one for this set of councilmembers.

Warpehoski’s request for those assurances got a positive response from Stephen Kunselman (Ward 3), who’d opposed McWilliams’ appointment to the DDA board. Kunselman thanked Warpehoski for his leadership in bringing the question forward. The desire for the assurances was motivated in part by the fact that the council was absent three of its members on Oct. 7 – Marcia Higgins (Ward 4), Christopher Taylor (Ward 3) and Sally Petersen (Ward 2). Higgins and Taylor had supported McWilliams’ appointment at the Sept. 16 vote.

The vote to postpone the reconsideration of McWilliams’ appointment until Oct. 21 was unanimous.

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