Stories indexed with the term ‘Stephen Postema’

At an Aug. 27, 2014 hearing, judge Donald Shelton denied two of three procedural motions by plaintiffs in the footing drain disconnection lawsuit that was filed against the city of Ann Arbor in February. He delaying ruling on a third motion.

The case involves a claim of unconstitutional takings – inverse condemnation. Plaintiffs in the case, Yu v. City of Ann Arbor, are three Ann Arbor residents who had their footing drains disconnected under the city FDD program.

On his last motion day before retirement, Shelton chose to deny a motion to disqualify the city attorney’s office in its representation of the city. That motion was based on the plaintiffs’ contention that testimony on non-privileged matters would be required of assistant city attorney Abigail Elias.

Shelton’s ruling to deny the motion to disqualify Elias came only after Elias answered what Shelton portrayed as the key question: Would the city’s defense of the lawsuit depend on a contention that the ordinance was enacted based on the opinion of counsel? Elias indicated that she did not think it was relevant, but Shelton insisted on an answer, telling her that if the city wanted to use that as part of its defense, “you’re out of here.” So Elias told Shelton the city would not be using that as part of its defense. Shelton later made clear that such a defense would not be allowed.

In making his ruling on the disqualification issue, Shelton appeared to indicate that he did not think relevant factors in the case included the city’s stated rationale for enacting the FDD ordinance – on grounds of public safety health and welfare – or the efficacy of the ordinance in reducing sanitary sewer overflows and backups. The case was not about whether the FDD ordinance was a good idea, he said, but rather about whether it was a lawful idea.

Shelton also denied a motion to reassign the case away from judge Timothy Connors – who will be taking over all of Shelton’s civil cases after Shelton’s last day as judge on Aug. 29. On that motion, Shelton pointed out that he did not have the power to grant it. He declined to say anything about what he thought regarding the merits of the motion, and indicated that such a motion should go through the regular disqualification process. That entails making a motion in front of the judge to be disqualified – and if the judge declines to disqualify himself, possibly appealing to the chief judge of the circuit court, who is David Swartz.

However, Shelton delayed ruling on a third motion, on sanctions against the city’s attorneys – for making statements in a brief in support of summary disposition that plaintiffs contend did not have a basis well-grounded in fact. Shelton questioned assistant city attorney Abigail Elias closely on the matter, and appeared to indicate some agreement with plaintiffs’ contention that the city had, in its brief filed with the court, mischaracterized the plaintiffs’ position. And during back-and-forth with Shelton, Elias herself stopped just short of admitting that her choice of the word “concede” was a misrepresentation of the plaintiffs’ legal position – something she described as possibly an overstatement in the course of zealous representation of her client.

Shelton indicated that the motion on sanctions – in connection with the brief on summary disposition – should be heard at the same time the motion on summary disposition is heard. So Shelton indicated he would be adjourning that motion until Sept. 18. That hearing on summary disposition is scheduled before Connors.

No substantive matters have yet been decided in the case, which the city first removed to federal court. However, the plaintiffs moved for remand from the federal court back to the circuit court – a motion that was granted by judge Avern Cohn in late May. When the case returned to the circuit court, plaintiffs filed a motion for a preliminary injunction, which was heard and denied by Shelton in early July. The city had filed a motion for summary disposition on June 9, which was originally scheduled for July 30. It was subsequently rescheduled by the city for Aug. 13, and then shifted by the city again to Sept. 18 – which is after Shelton’s scheduled retirement.

When Shelton ruled on the motions after listening to each side, he prefaced the ruling with some general commentary reflecting his 24 years of experience as a judge, which were coming to an end. That commentary highlighted the idea of “winnowing” out the extraneous issues introduced by lawyers on both sides to focus on what a case was actually about.

For the disqualification issue, Shelton wanted to know two things: What specific non-privileged testimony, relevant to the central issue of the case, would be required from Elias? Would the city use as part of its defense the claim that the ordinance had been enacted based upon the opinion of legal counsel? For the judge reassignment issue, the question Shelton identified and answered himself was: Do I have the power to decide this motion? And for the motion on sanctions, Shelton indicated that the central question was: When and in what context should the motion be decided?

A more detailed report of the proceedings is provided below. Dan O’Brien of Woods Oviatt Gilman in Rochester, New York was asked by Shelton to argue all motions in one speaking turn, which he did in the following order: (1) motion to disqualify; (2) motion to reassign away from Connors; and (3) motion for sanctions. [Full Story]

The footing drain disconnection lawsuit filed against the city of Ann Arbor in late February has taken several procedural turns over the last six months, with virtually no issues on the merits of the case yet resolved.

The latest procedural issues now appear set to be decided on Aug. 27, 2014 – judge Donald Shelton’s final motion day before his retirement.

The case involves a claim of unconstitutional takings – inverse condemnation. Plaintiffs in the case, Yu v. City of Ann Arbor, are three Ann Arbor residents who had their footing drains disconnected under the city FDD program.

The procedural issues that could be decided next week include a motion to disqualify the city attorney’s office from representing the city due to conflicts; a motion to sanction city attorneys for filing documents with statements that plaintiffs allege are not well-grounded in fact; and a motion to reassign the case to a judge other than Timothy Connors. All three motions were filed with the court on Wednesday, Aug. 20.

A dispute about whether those Aug. 20 filings were properly served upon the city is one of the issues Shelton could decide at the start of the hearing.

By way of background, the case was originally filed in the Washtenaw County 22nd circuit court and assigned to Shelton in late February. The city then removed the case to federal court. However, the plaintiffs moved for remand from the federal court back to the circuit court – a motion that was granted by judge Avern Cohn in late May.

When the case returned to the circuit court, plaintiffs filed a motion for a preliminary injunction, which was heard and denied by Shelton in early July. The city had filed a motion for summary disposition on June 9, which was originally scheduled for July 30. It was subsequently rescheduled by the city for Aug. 13, and then shifted by the city again to Sept. 18 – which is after Shelton’s scheduled retirement.

According to the court administrator’s office, the case will not officially be reassigned to a different judge until Sept. 2. However, when The Chronicle inquired with the 22nd circuit court’s central scheduling office, the staff indicated that the plan was to reassign all of Shelton’s civil cases to Connors. So the city’s paperwork scheduling of the Sept. 18 hearing specifies Connors as the judge. [Full Story]

Ann Arbor city attorney Stephen Postema has complied with the city council’s direction to produce a written opinion on the question of the legal validity of the council’s 6-5 vote taken on Sept. 16, 2013 – to appoint Al McWilliams to the board of the Ann Arbor Downtown Development Authority. [.pdf of Oct. 16, 2013 opinion]

In reaching the conclusion that the vote is legally valid, Postema relies on the city charter, the council’s rules and Robert’s Rules of Order. The opinion relies on the basic principle that objections to a conclusion that a motion has passed must be made in a timely way.

Postema’s opinion does not attempt to settle the question of whether an 8-vote majority should have been … [Full Story]

The Jan. 24, 2013 meeting of the Ann Arbor city council’s audit committee signaled a more actively engaged role for that group in the future. It was prompted in part by a report submitted by the city’s outside financial auditor late last year – on which the committee did not appear to have a unanimous consensus at the Jan. 24 meeting. The audit was conducted by the firm Rehmann, which is now in the first year of a five-year contract to perform auditing services for the city.

Listed among other relatively minor matters in Rehmann’s report was a note identifying three instances of an employee who had claimed mileage reimbursement despite receiving a vehicle allowance. At a scheduled Dec. 20, 2012 meeting of the audit committee, the dual claims were described by Rehmann’s Mark Kettner as a “double dip.” Those claims were also cited in Kettner’s written report as a violation of city policy.

The Chronicle’s write-up of the auditor’s presentation late last year to the audit committee – which did not achieve a quorum on that occasion – included the result of additional reporting: Mileage claims made by city attorney Stephen Postema caused the auditor to flag the issue in his formal report.

But at the Jan. 24 committee meeting, Kettner revealed that he’d been convinced to change the wording of the note. The new wording will not indicate a “violation” of city policy. At the meeting, however, Kettner indicated that a note about this issue would still be included – with the exact wording yet to be settled. City CFO Tom Crawford’s written response to the auditor’s report includes email messages that show it was Crawford and Postema who made a successful effort to convince Kettner to alter the report’s wording.

The wording of Postema’s employment contract factored into arguments made by Postema and Crawford for a revision to the auditor’s report. When Postema made his reimbursement claims, his contract at that time provided for “travel” expenses in addition to a vehicle allowance. Postema’s vehicle allowance was eliminated late last year, as a result of his annual performance review. Also factoring into the argument for revising the auditor’s note was Crawford’s contention that the city’s written policies don’t provide clear guidance on the question.

However, at the Jan. 24 committee meeting, Sumi Kailasapathy (Ward 1) challenged Crawford on that point. [Kailasapathy was elected to the council in November 2012 – running a campaign that stressed her credentials as a certified public accountant.] She reviewed the logic and specific wording of each of the city’s relevant policies, with particular attention to the meaning of the word “travel” – and reached the conclusion that the mileage reimbursements had not conformed with city policy.

And even though Kettner has agreed to change the wording of the note in his report, Kettner wrote in a Jan. 18 response to Postema and Crawford: “… from a business practices standpoint, our conclusion (with or without the existence of a policy) was it would be illogical and, therefore inappropriate, to make mileage reimbursements to persons having a car allowance.” Kettner’s response also indicates that his conclusion of inappropriateness was not based on a review of Postema’s employment contract.

At the Jan. 24 meeting, Crawford interpreted the fact that he and Kailasapathy reached different conclusions about the appropriateness of the mileage claims as evidence that the written policies didn’t provide clear guidance.

Stephen Kunselman (Ward 3) seemed to reflect the general sentiment of the two other committee members present – Chuck Warpehoski (Ward 5) and Margie Teall (Ward 4) – in concluding that he didn’t think anyone had been trying to “game the system.” Kunselman indicated little enthusiasm for delving into the wording of Postema’s contract or existing city policies. He was more interested in making sure that the relevant policies would be revised and applied in the future – not just for the travel and mileage policies, but for the other issues identified in the auditor’s report.

Kunselman also indicated that he was keen to see the audit committee take a more active, engaged role – throughout the year, not just once a year on the occasion of the auditor’s report. The committee as a group also seemed favorably inclined toward adopting a more proactive approach. The committee’s extended conversation about the relationship of the city’s part-time internal auditor indicated that while the internal auditor would still report to Crawford, the audit committee would be looped into the ongoing issues that emerged throughout the year as they arose – instead of six months after they happened. It could result in meetings of the committee at other times besides the occasion of the annual auditor’s report.

That reflects a transition from the role that the audit committee has played as recently as two years ago. The committee did not meet at all during that year, even to review the FY 2010 auditor’s report – because audit committee chair Stephen Rapundalo declined to call a meeting. Kunselman complained at the time about the lack of a committee meeting. Rapundalo was not re-elected in 2011 – when he had faced Jane Lumm, who received more votes than Rapundalo that November. [Full Story]

A source on the Ann Arbor city council confirmed for The Chronicle that city attorney Stephen Postema has told councilmembers he will not be running for a judgeship on the 22nd circuit court. Last August he’d indicated to The Chronicle that he was considering a run. ["Postema Mulling Run for Circuit Court Judge"]

As late as Jan. 23, he’d said he had not made a decision about whether to run. Had he entered the race, he would have faced competition from local attorneys Carol Kuhnke, Doug McClure and Erane Washington, who all attended a meeting of Ann Arbor city Democrats in mid-January and asked attendees for their support. Shortly after that meeting, local attorney Jim Fink issued a … [Full Story]

At its Dec. 19, 2011 meeting, the Ann Arbor city council conducted a closed session to review the performance of its city attorney, Stephen Postema, for 2011. The result of the session was that the council voted, with dissent from Sabra Briere (Ward 1), to approve an amendment to Postema’s contract that allows him to cash-in up to 250 of hours of accrued banked time before June 30, 2012.

The position of city attorney is one of two positions that reports directly to the council – the other is the city administrator. Under Michigan’s Open Meetings Act, reviews of personnel are allowed to be conducted in a closed session on request from the employee, but are not required to be. However, Postema’s contract contains a clause specifying that: “The results of the evaluation shall be in writing and shall be discussed with the Employee in closed session.”

A performance review conducted just two months ago at the council’s Oct. 24, 2011 meeting had been just for 2009 and 2010. That review did not result in any adjustment to Postema’s base salary, but also allowed him to cash-in up to 250 hours of accrued banked time before the end of 2011.

In a rare move, Sabra Briere (Ward 1) sat out most of the closed session on Dec. 19 and voted no on the contract amendment this time around. She questioned whether the council’s administration committee had provided other councilmembers with opportunity to offer feedback on Postema’s performance since the Oct. 24 review. She noted that other councilmembers had been given an opportunity to provide their view on Postema’s performance before the Oct. 24 review, but that review had specficially been just through 2010.

And Briere did not recall being given an opportunity to provide additional feedback since October for the current review – which included 2011. None of the members of the council’s administration committee could point to an occasion when feedback had been solicited during that time period. Mayor John Hieftje offered that sometimes all the forms are confusing.

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] [Full Story]

In an email sent to The Ann Arbor Chronicle, city attorney Stephen Postema stated that he has not yet decided whether to seek the judgeship that will be open on Michigan’s 22nd Circuit Court when Melinda Morris leaves the bench. Her term ends in January 2013 and she will be retiring.

From Postema’s statement: “Finally, as to my future plans … [m]any persons have asked whether I will seek this position you mentioned or suggested that I run, but, for your information, I have made no decision on this.”

Terms for circuit court judges are six years. They’re chosen in non-partisan elections. Eligibility includes residing in the judicial circuit, being licensed to practice law for at least five years, and being … [Full Story]