From left: Commissioner Kent Martinez-Kratz (D-District 1); Bob Tetens, director of parks & recreation; county prosecuting attorney Brian Mackie; and county treasurer Catherine McClary. (Photos by the writer.)

The board, comprised of elected officials representing nine districts, is responsible for budget decisions. The five positions that are elected by voters countywide – the sheriff, prosecuting attorney, treasurer, clerk/register of deeds and water resources commissioner – head up county departments but must have their budgets approved by the board.

The board is developing a process that will guide budget decisions regarding how to manage budget surpluses or shortfalls, including $3.9 million surplus from 2013 and about $600,000 in higher-than-budgeted property tax revenues in 2014. The county administrator, Verna McDaniel, is recommending that the $3.9 million be kept as general fund reserves. Some county commissioners would rather spend at least a portion of the surplus.

The recommendation from the electeds is to allocate a to-be-determined percentage of any surplus to these five areas: (1) unfunded liabilities for the pension fund; (2) unfunded liabilities for the retiree health care fund; (3) the county’s housing fund, which was eliminated in 2012; (4) the delinquent tax fund reserves, specifically for internal advances on county projects to save bonding costs; and (5) the capital reserve fund or unearmarked reserve fund.

Commissioners made no decision on these recommendations, other than to thank the electeds for their input.

In other budget-related action, the board gave final approval to put a 10-year parks & recreation millage renewal on the Nov. 4, 2014 ballot. Commissioners also set public hearings for two millages that are levied annually in December without voter approval – for support of indigent veterans and their families; and to fund economic development and agricultural activities. Those hearings, to solicit public input, will be held at the board’s July 9 meeting.

The board also gave final approval to set the county’s general operating millage rate at 4.5493 mills – unchanged from the current rate. This is an annual process that includes a public hearing, which was also held on June 4. One person spoke.

A final vote was also taken to create a new committee that will explore funding options for road repair. This follows the board’s rejection – at its meeting on May 21, 2014 – of a proposal to levy a countywide tax for this purpose. No committee members have been appointed yet.

The board was also briefed on work by the community corrections unit, which is part of the sheriff’s department. It provides services that include jail diversion and alternative sentencing options to the Washtenaw County Trial Court, pre-trial services, drug testing, and electronic monitoring. The use of electronic monitoring has increased dramatically, from an average number of cases between 25-30 at any given time in FY 2012-2013, to between 85-115 cases in FY 2013-14.

During public commentary, commissioners heard from David Schonberger, an Ann Arbor resident who thanked the board for passing a resolution last month to oppose oil exploration and drilling in the county. He urged them to use it as a starting point for more action. Specifically, he advocated that the board fund a robust public education campaign and establish an advisory committee to work with Scio Township and the city of Ann Arbor on this issue.

Budget Process

At its Nov. 20, 2013 meeting, the Washtenaw County board of commissioners approved a four-year general fund budget for 2014-2017. As part of that process, the board adopted a set of budget policies, which were revised at that meeting to address a process for allocating any revenue surpluses – beyond the amounts that are contributed to the county’s fund balance.

Here are the relevant policy sections:

11. The Board of Commissioners commits to long-term budget flexibility and sustainability, and an adequate level of cash flow with its attention to fund balance. A healthy fund balance is an essential ingredient and the following was considered to determine an appropriate level as a target: an appropriate level to fund at least 60 days of operations, to help offset negative cash flow (primarily from the seven month delay in property tax collections after incurred expenses), and to assist buffering any unexpected downturns. Therefore, the Board shall plan future budgets to meet the goal of a Reserve for Subsequent Years representing at least 20.0% of General Fund expenditures, net of indirect costs.

12. Any annual surplus or deficit will have options for use recommended by the County Administrator in alignment with the community outcomes and processes as outlined by the adopted Community Impact Resolution 13-TBD, presented to the Board of Commissioner for consideration and confirmed by Board action and authorization in July of each calendar year.

Felicia Brabec (D-District 4) has been leading the budget process for the board, as chair of its ways & means committee. On May 21, 2014, she presented a timeline for budget work in 2014. [.pdf of budget calendar resolution] Highlights are:

• July 24, 2013: Board approved budget priorities. (That document was subsequently amended on Aug. 7, 2013.)
• May 7, 2014: Board authorized county administrator to seek consultant for work on budget priorities. The review and selection process for that consultant is underway.
• June 5, 2014: Budget discussion on the board’s working session agenda, to discuss the status of any general fund surplus or shortfall.
• July 9, 2014: County administrator presents recommendation for using surplus or addressing shortfall, based on board priorities. Board to take initial vote on recommendation.
• Aug. 6, 2014: Final vote set for surplus/shortfall recommendation.

The county had a 2013 general fund surplus of $3.9 million. County administrator Verna McDaniel has recommended to keep that amount in the general fund’s unearmarked reserves, to meet the county’s goal of having reserves that total 20% of the general fund budget.

On May 21, Conan Smith (D-District 9) had expressed frustration at the approach, because the county administrator has already recommended to keep that amount in the general fund’s unearmarked reserves. He thought the process was “turning out to be little more than a rubber stamp of a decision that’s already been proposed by the administration.” Brabec stressed that commissioners will be discussing and making the final decision – which might differ from the administration’s recommendation.

Budget Process: Advice from “The Electeds”

On June 4, board vice chair Alicia Ping (R-District 3) was leading the board meeting in the absence of chair Yousef Rabhi (D-District 8). She noted that there were “special guests” at the meeting who would be making a presentation to the board – three of the five countywide elected officials: Sheriff Jerry Clayton, treasurer Catherine McClary, and prosecuting attorney Brian Mackie. Clerk/register of deeds Larry Kestenbaum and water resources commissioner Evan Pratt did not attend, but supported the written recommendation that was presented to the board. [.pdf of recommendation] These five positions are informally known as “the electeds.”

Alicia Ping (R-District 3) is vice chair of the county board.

Clayton referred to Ping’s introduction, joking that if they are viewed as guests then they should come to more meetings. He said the recommendation speaks for itself, but they wanted to frame it for the board. They understood that the board has the final authority and decision-making for the county budget, and for how revenues are spent. “We respect that,” Clayton said. But the five countywide-elected officials are part of the county leadership too, he added, and are responsible to all 340,000 residents that elected them into office. So they thought it was important to lend their perspective as the board undertakes its new budget process.

The countywide electeds are asking the board to factor in some set-asides for items that will continue to be a challenge, Clayton said. There are no recommendations regarding amounts or percentages, he noted – that determination is up to the board. “We plan on staying available and engaged in the process as you think about the budget,” he said. “We want to be seen as partners, as part of an overall collaborative effort – not as obstacles or as a group that’s trying to get in the way of the process, but quite frankly trying to enhance the process.”

McClary stressed that the recommendation is supported by all five countywide elected officials, and is presented in the spirit of partnership. She noted that several years ago, she had served on the county board, and for part of that time she served with Ronnie Peterson (D-District 6). One of the most important things for the board to assert was its ability to set policy through its budget. “That is your primary responsibility and authority as a board of commissioners,” she said.

The board had taken a momentous step last year when they adopted a four-year budget, McClary continued, “and we want to commend you for that.” But a four-year budget requires being very conservative about revenue estimates. For example, the budget had projected a 1% increase in revenues this year, but the actually increase is about 2% – or about $600,000 more in property tax revenues than budgeted.

In addition, the county recently refinanced some bonds, saving more than $2 million, McClary noted. That amount had previously been budgeted for debt service. [.pdf of press release about bond re-funding] [.pdf of May 28, 2014 bond prospectus]

So knowing that there will likely be unanticipated increases in tax revenues over the next four years, the five electeds are asking that the board consider developing and adopting a formula by which to allocate that money. For example, McClary said the county has “severe” unfunded liabilities for its pension fund – a defined benefit plan called the Washtenaw County Employees’ Retirement System (WCERS) – and for its Voluntary Employees Beneficiary Association (VEBA) retiree health care fund. The county is working on a 27-year amortization to achieve 100% funding, but any money that’s put into the funds today will be compounded over that 27-year period, she noted.

In addition to allocating a percentage of any surplus to unfunded WCERS and VEBA liabilities, other recommendations for allocating surplus revenues are:

• Adding to the county’s delinquent tax fund reserves, specifically for internal advances on county projects to save bonding costs.
• Restoring the county’s housing fund. (The fund had received about $110,000 annually, but was eliminated in 2012 as the county made cuts to prevent a budget deficit.)
• Increasing the budgeted amount for the capital reserve fund or unearmarked reserve fund.

By having a plan and assigning percentages to different priorities, McClary noted, the board can strategically allocate surplus funds. She pointed out that the Ann Arbor city council had done something similar at its June 2 meeting – by voting to set aside 50% of the net proceeds from the possible sale of development rights on the Library Lane lot, and put those proceeds into the city’s affordable housing trust fund.

McClary said she’d also been surprised by Ping’s description of the electeds as “guests,” calling it exceedingly polite. She again stressed that the five electeds hoped to be partners with the board, giving “on-the-ground information about what it’s like to run a department and to provide services to citizens in this county.”

Budget Process: Board Discussion

Conan Smith (D-District 9) responded to the presentation by quipping, “Thanks, roommates!” He asked McClary to explain the recommendation about adding to the delinquent tax fund reserves for internal advances.

Conan Smith (D-District 9).

McClary replied that it’s a topic somewhat separate from any decision to allocate surplus revenues to it. She said the issue can be explored in more detail at a July 10 working session, when she and Evan Pratt – the county’s water resources commissioner – will be making a presentation.

McClary then described the proposal, which she had also mentioned in a presentation to the board at its March 19, 2014 meeting. The idea is for the county to internally fund some of its projects – for drains, roads, public works, parks – instead of bonding. The amount for internal advances would be small – in the $400,000 range or less. She noted that when the county issues bonds, it has to pay a bond attorney and financial advisor, in addition to other costs associated with a bond issue. About half of the money goes toward fees and interest payments, not for the project itself. “We believe we can save the taxpayers quite a bit of money,” she said, by taking care of these financing needs internally, which she called “self-funding.”

When she first became treasurer, McClary noted, there was about $20 million in the delinquent tax revolving fund, and delinquent taxes were about $15 million. So it would have been possible to self-fund some projects then, but the county administration at that time didn’t take that approach. Rather, any excess money above $4 million was moved to the capital projects fund – that’s how the county has been paying debt service for various projects over the last 20 years, she said.

In the past, the county board had authorized keeping up to $4 million in the delinquent tax revolving fund as reserves. Now, McClary is recommending to increase that amount incrementally so that there will be more money for self-funding. She said she already self-funds a small amount of projects, including drain projects from the office of the water resources commissioner.

As another example, McClary said she has discussed using the fund to help the road commission purchase trucks – as the commission typically need about $1 million for five trucks each year. Right now, the road commission is financing those purchases at an interest rate over 3%. McClary said her investment portfolio is earning half a percent. If the road commission agreed to a 2% interest rate in a self-funding arrangement, they’d save money and the general fund would earn more. “That’s the type of thing we want to talk with you about,” she said.

McClary noted that the four-year budget included very conservative estimates on property tax revenues, so there will likely be excess revenues. She told the board that this particular group of commissioners has been very policy-oriented, and meticulous about planning. “We’re thinking this would be a great partnership,” she said.

County administrator Verna McDaniel.

Conan Smith agreed, saying the anticipated excess revenues provide a great opportunity to make strategic, systemic investments. It’s an opportunity that the county hasn’t had in many years, he said, and the advice from electeds is appreciated.

Other commissioners also thanked the group for these recommendations. Andy LaBarre (D-District 7) asked about the recommendation to put a percentage of excess revenues toward unfunded liabilities in the WCERS pension fund. The recommendation includes a statement that WCERS is “now less than 60% funded, a level defined as below acceptable norms.” He asked McClary to elaborate, saying that it drew a bit of a red flag for him.

McClary said she thought the recent bond rating prospectus had mentioned that the pension funding was low. But it had also mentioned the management of the county and the strategic role that the board of commissioners is playing, she said. Board chair Yousef Rabhi (D-District 8) had gone with the administration to meet with the Standard & Poor’s staff prior to the bond issue, McClary said. She noted that she had participated in that meeting via conference call, and reported that Rabhi had conveyed in a very emphatic way the strategic approach that the board is taking. She pointed out that the county was successful in securing a triple-A rating.

The Government Finance Officers Association is the premier organization for assessing standards, McClary noted. LaBarre’s question would be a good one to ask of the county’s actuaries when they present to the board in July, she added. “They have indicated that anything under 60% is getting into territory that becomes problematic,” she said.

LaBarre clarified with McClary that the term “below acceptable norms” didn’t come from an audit or official statement from the actuaries.

Budget Process: Working Session

Felicia Brabec (D-District 4) gave an update on the hiring of a consultant for helping the board on budget-related work. By way of background, at the board’s March 19, 2014 meeting, commissioners authorized county administrator Verna McDaniel to hire a contract employee who will support budget-related work this year for the county board and administration. As county administrator, McDaniel has discretion to spend up to $50,000 on professional services contracts.

Two candidates were selected for interviews, but one of them subsequently withdrew, Brabec said. The remaining candidate will be interviewed on June 5, she added.

Also on June 5, the board would be holding a budget discussion at its working session, including how to use the 2013 budget surplus. Responding to a query from Ronnie Peterson (D-District 6), Brabec said that no decisions would be made at the working session, “but we wanted to start to have that conversation.” At some point, the board will develop a document with guidelines that will direct their decisions about allocating any surplus.

Outcome: This was not a voting item.

Public Hearings for Millages

The board was asked to set public hearings for its July 9 meeting to get input on two millages that Washtenaw county levies without voter approval: (1) for support of indigent veterans and their families; and (2) to fund economic development and agricultural activities.

From left: Commissioners Rolland Sizemore Jr. (D-District 5) and Andy LaBarre (D-District 7), standing, talk with Greg Dill, the county’s director of infrastructure management.

No increase is proposed for the economic development millage, levied under Act 88. The proposal is to levy 0.07 mills in December 2014, raising an estimated $1,022,276 in property tax revenues. In previous years, the resolution setting this millage has outlined how the revenues would be allocated. The largest allocations have gone to the county’s office of community & economic development, and to the nonprofit Ann Arbor SPARK.

However, at its Nov. 6, 2013 meeting, the board adopted a new policy for allocating Act 88 revenues, drafted by Conan Smith (D-District 9). [.pdf of Act 88 policy] The policy included creating an Act 88 advisory committee to make recommendations to the board and prepare an annual report that assesses how Act 88 expenditures have contributed toward progress of goals adopted by the board. The policy allows the committee to distribute up to 10% of annual Act 88 revenues without seeking board approval. The policy also allocates up to 30% of revenues to the county office of community & economic development, which administers Act 88 funding.

For support of indigent veterans, the county is authorized to collect up to 1/10th of a mill without seeking voter approval. That’s because the state legislation that enables the county to levy this type of tax – the Veterans Relief Fund Act, Public Act 214 of 1899 – predates the state’s Headlee Amendment. The county first began levying this millage in 2008, and collects the tax in December. Services are administered through the county’s department of veterans affairs.

Since 2008, the county board has slightly increased the rate that it levies each year. In 2012, the rate was 0.0286 mills – or 1/35th of a mill. It was raised to a rate of 1/30th of a mill in December 2013, to fund services in 2014.

The current proposal is to levy 1/27th of a mill in December 2014, which is expected to raise about $540,887 in revenues for use in 2015.

In previous years, the board has taken action in the fall to levy these millages. When queried by The Chronicle about the earlier timeline this year, finance director Kelly Belknap said the required documentation for these millages must be submitted by Sept. 30. “Prior to submitting the required documentation the Commissioners must first approve the levy. So it is just about timing and getting the documents submitted within the required timeframe,” she said.

Outcome: Without discussion, the public hearings for these millages were set for July 9.

Parks & Recreation Millage

The agenda included a resolution giving final approval to put a 10-year parks & recreation operations millage renewal on the Nov. 4, 2014 ballot.

From left: Ronnie Peterson (D-District 6) and Rolland Sizemore Jr. (D-District 5). Sizemore also serves on the county parks & recreation commission.

The parks & recreation operations millage was first authorized by voters in November 1976 at 0.25 mills for a 10-year period and has been renewed three times. Because of the state’s Headlee amendment, the rate that’s actually levied has been rolled back and is now 0.2353 mills. The current millage expires in December 2016.

If renewed again, it would generate an estimated $3.2 million annually. That’s about half of the parks & recreation annual operating expenses of $6.7 million. Other revenue sources are admission/gate/membership fees charged seasonally at facilities including the Meri Lou Murray recreation center, the water/spray parks, and the Pierce Lake golf course. Funding is also received from state and federal grants as well as private donations. [.pdf of staff memo]

The county parks system receives most of its funding from two countywide millages. In addition to the operations millage, another millage pays for capital improvements and park development. It was also originally levied at 0.25 mills, but has been rolled back to 0.2367 mills.

In addition, a third millage – levied at 0.25 mills but rolled back to 0.2409 mills – funds natural areas preservation, bringing in about $3 million annually. It was first approved by voters in 2000, and renewed for another 10 years in 2010.

The county’s parks & recreation department is overseen by a separate entity – the parks & recreation commission – whose members are appointed by the county board. The county board has the authority to put a parks millage proposal on the ballot, but does not authorize expenditure of the funds. That responsibility rests with the parks & recreation commission. The group meets monthly at the parks & recreation office at County Farm Park, and its meetings are open to the public.

Outcome: Without discussion, the board gave final approval to put the parks & recreation operations millage renewal on the Nov. 4, 2014 ballot.

General Operating Millage

The June 4 meeting included a final vote to set the county’s 2014 general operating millage rate at 4.5493 mills – unchanged from the current rate. This is an annual process that includes a public hearing, which was also held on June 4. One person – Thomas Partridge – spoke, advocating for more resources to provide services for the county’s most vulnerable residents.

Several other county millages are levied separately: emergency communications (0.2000 mills), the Huron Clinton Metroparks Authority (0.2146 mills), two for county parks and recreation (for operations at 0.2353 mills and capital improvements at 0.2367 mills) and for the natural areas preservation program (0.2409 mills). That brings the total county millage rate levied in July to 5.6768 mills, a rate that’s also unchanged from 2013. [.pdf of staff memo]

This is a mandatory procedural action, not a vote to levy new taxes. With a few minor exceptions, the county board does not have authority to levy taxes independently. Millage increases, new millages or an action to reset a millage at its original rate (known as a Headlee override) would require voter approval.

The rates will be included on the July tax bills for property owners in Washtenaw County.

Outcome: The millage rate was set by a unanimous vote, without discussion.

Community Corrections

A request to approve the application for a $421,900 state community corrections grant appeared on the June 4 agenda.

Sheriff Jerry Clayton talks with Judy Foy, left, and Renee Wilson, director of community corrections. Foy serves on the community corrections advisory board.

The grant from the Michigan Dept. of Corrections is for the period from Oct. 1, 2014 through Sept. 30, 2015. This is part of a regular, annual grant process to fund services that include diversion and alternative sentencing options to the Washtenaw County Trial Court, pre-trial services, drug testing, electronic monitoring and “social education,” according to a staff memo. The total program of $1.18 million also includes $240,983 in county matching funds, $280,584 in estimated program revenue, and $239,554 in the use of fund balance. The community corrections program is part of the county sheriff’s office. [.pdf of staff memo] [.pdf of grant application]

This year’s program includes a new position – with a salary range between $31,912 and $43,674 – to help supervise a substantial increase in use of electronic monitoring by all Washtenaw County courts, for pretrial and sentenced offenders as an alternative to jail. According to the staff memo, the use of electronic monitoring increased 256% over the previous fiscal year. Average electronic monitoring cases for FY 2012-13 were between 25-30 at any given time, and increased to between 85-115 cases in FY 2013-14. Increased revenue from the electronic monitoring program and use of fund balance will be used to fund the increase in staffing.

The grant was submitted to the state in May.

Community Corrections: Board Discussion

Felicia Brabec (D-District 4) described community corrections as a “gem” that most residents aren’t aware of. She asked for more information about the increase in the number of people who are served through this program.

Renee Wilson, community corrections director, replied that there’s been a constant increase over the past two or three years, for a variety of reasons. Community corrections has established itself as a service for the courts and county prosecutor’s office that they have confidence in, she said, in terms of pre-trial supervision. Systemically, she added, the county is approaching the management of jail overcrowding better than in the past, diverting people who don’t need to be in jail during the pre-trial period by using community corrections.

Sheriff Jerry Clayton and commissioner Felicia Brabec (D-District 4).

There’s also been an increase in drug testing. “We’ve pretty much become the sole provider of drug-testing services to all of Washtenaw County,” Wilson said. In past years, there were some private entities that provided those services, but the courts have moved to looking at community corrections for that service, she said.

The case load for electronic monitoring is another area that’s increased, Wilson noted. One factor is the increase in specialty courts throughout the county, which each have different requirements for services, including electronic monitoring. Also, the 14-A District Court no longer runs its own tether program, she noted, so that’s coming to community corrections as well.

Courts are doing risk assessment for pre-trial offenders, Wilson explained. Court magistrates, prior to every arraignment, identify people who would be appropriate to release on bond, and determine what type of supervision would be appropriate for them. Some of those people are being referred to the electronic monitoring program, she said.

Brabec asked Wilson to talk about the number of jail beds saved by this approach. According to Wilson, from 2010 to 2013, the diversion efforts resulted in 91,375 jail bed days that weren’t used, saving the county $11,513,250. Wilson noted that these figures only included “successful completions” for all pre-trial and sentenced supervision programs. That is, the figures don’t include savings from people who were initially part of a program but who were then sent back to jail for whatever reason, she said.

Between 2012 and 2013 there was an increase in the estimated per-day cost of a jail bed per inmate. Prior to 2012, the cost was estimated at $85 per day, based on a study that the county had done in 2003. That figure was updated for 2013, based on internal cost studies done by the sheriff’s office. The current estimated per-day cost of a jail bed is $126.

Outcome: Commissioners unanimously approved the grant application.

Road Funding

Commissioners were asked to give final approval to create a new committee that will explore funding options for countywide road repair.

Lew Kidder of Scio Township has been active in road funding issues.

Commissioners had given initial approval to the idea at their May 21, 2014 meeting, after rejecting a proposal to levy a 0.4-mill countywide road tax in December. The tax would have been levied under Act 283 of 1909, which does not require voter approval.

In arguing against levying the tax at this time, some commissioners cited the need to study funding options – including a possible Act 283 levy – before making a decision. The committee will consist of seven members: (1) a road commissioner or designee; (2) the road commission managing director or designee; (3) the county board’s road commission liaison; (4) one additional county commissioner; (5) a position representing townships; (6) a position representing incorporated municipalities; and (7) a member of the general public. Members will be appointed at a later date.

The county administrator will help provide administrative support to the committee. The resolution also states that the county road commission could present a road funding plan at the board’s annual meeting in the fall “as Act 283 of 1909 provides.”

For additional Chronicle coverage on road-related issues, see: “County Board Continues Weighing Road Tax,” “County Board Debates Expanded Road Commission,” “County Board Sets Hearing on Road Tax,” “County Considers Road Funding Options,” “No Major Change Likely for Road Commission” and “Group Explores Road Commission’s Future.”

On June 4, there was no discussion on this item.

Outcome: The resolution passed on a 6-1 vote, over dissent from Conan Smith (D-District 9). Commissioners Yousef Rabhi (D-District 8) and Dan Smith (R-District 2) were absent.

Board of Health

The June 4 board agenda included a resolution to create a board of health, an entity that would prove advice on public health issues for the county. Commissioners had given initial approval to the item at their May 21, 2014 meeting.

A description of the board’s duties is outlined in a staff memo that accompanied the resolution:

The purpose and role of a Washtenaw County Board of Health will be to identify public health problems and concerns in the community, establish health priorities, and advise the Board of Commissioners and the Health Department on issues and possible solutions. The Board of Health will serve as advocates and educators for public health services and policies. The Board of Health will provide oversight and guidance to the Health Department, and will recommend a program of basic health services to the Board of Commissioners.

The new Board of Health will have the authority to hear appeals and requests for variances from the local public health and environmental regulations established under the Public Health Code. The Board of Health will have the authority to hear appeals regarding the suspension or revocation of food service licenses.

The resolution creating the health board also dissolves an existing environmental health code appeals board and the hearing board for the Health Department Food Service Regulation. The duties of those boards would be absorbed by the new health board. [.pdf of staff memo]

The recommended size is 10 members, including one ex-officio representative from the county board of commissioners. According to the staff memo, appointments could represent “health service delivery (physicians, dentists, mental health practitioners, administrators); environmental health and conservation, land use planning, food service and nutrition, academia, K-12 education, philanthropy, social service delivery, legal services, and consumers of public health services.”

Members would be compensated for attending each meeting. The total cost for the health board, including in-kind staff support, is estimated at $19,000 annually. The board of health would be expected to convene for the first time in October 2014.

Ellen Rabinowitz, the county’s public health officer, attended the June 4 meeting but left when she was told that the item would be postponed.

There was no discussion on this item, but Conan Smith (D-District 9) moved to postpone it until the board’s July 9 meeting. He did not give an explanation for the postponement.

Outcome: The item was postponed until the July 9 meeting.

Bonding for Malletts Creek Drain Project

The board was asked to authorize bonding for up to $650,000 to fund the Malletts Creek Springwater sub-drain project in Ann Arbor. Bond payments would be made through special assessments against the city of Ann Arbor. The project will include stormwater management improvements in the city’s Springwater subdivision. According to a staff memo, the financing will be made through the state revolving loan fund at 2.5% over 20 years. [.pdf of staff memo]

There was no discussion on this item.

Outcome: Commissioners granted initial approval for the bonding. A final vote is expected on July 9.

Proclamations

There were two resolutions of appreciation on the June 4 agenda.

Gloria Brooks, CEO of the nonprofit Arbor Hospice.

Alicia Ping (R-District 3) presented a resolution honoring Arbor Hospice on its 30th anniversary. It was founded in 1984 by Mary Lindquist, a registered nurse, to provide care for the terminally ill and their families.

The nonprofit’s CEO, Gloria Brooks, was on hand to accept a framed copy of the resolution. She thanked commissioners, saying it was “amazing to have a 30-year journey as we help families experience their end-of-life journey.” Arbor Hospice helps 50% of the residents of Washtenaw County, she said – it’s the largest provider in this county. She invited commissioners to a celebration on June 11.

Brooks received a round of applause from the board and staff.

Another resolution of appreciation honored Roy Wilbanks for his service to Washtenaw County and Eastern Michigan University. Wilbanks, a former EMU regent, did not attend the June 4 meeting.

Communications & Commentary

During the June 4 meeting there were multiple opportunities for communications from the administration and commissioners, as well as public commentary. In addition to issues reported earlier in this article, here are some other highlights.

Communications & Commentary: Oil Drilling

David Schonberger spoke during public commentary, introducing himself as a resident of Ann Arbor from the district represented by Andy LaBarre (D-District 7). He provided a handout to commissioners, in addition to his commentary. [.pdf of handout]

He thanked commissioners for passing a resolution at their May 21, 2014 meeting to oppose gas and oil drilling. He urged them to use it as a starting point for more action. Specifically, he advocated that the board fund a robust public education campaign and establish an advisory committee to work with Scio Township and the city of Ann Arbor on this issue. Schonberger noted that his research shows a gray area in relevant state laws, opening the door to “numerous creative ways to intervene and discourage that particular type of local economic development.”

From left: Corporation counsel Curtis Hedger and commissioners Conan Smith (D-District 9) and Felicia Brabec (D-District 4).

Schonberger cited a 1990 summary judgment upheld by the U.S. Federal Court of Appeals, 6th Circuit Court in the case of West Bay Exploration Co. v AIG et. al. [West Bay is seeking a permit for oil exploration in Scio Township.] “This citizen action is a statement about documented violations of state law, reckless irresponsibility, intentional corporate misconduct, and gross negligence at facilities located in Michigan,” he said. He added that NIMBY is particularly justified in this matter, and that the risks of such proposed activities in Washtenaw County vastly exceed any potential benefits.

Responding to his commentary, Conan Smith (D-District 9) agreed that the county could be doing more to help people restrain gas and oil exploration here. Educating residents is one of the key ways to do that, within the structure of the current state law, he added. The county “may or may not have regulatory authority that we can leverage, but we can certainly help people to organize, and to use their own property rights to protect their interests and the interests in the environment,” Smith said.

As an example, Smith stated that it takes a majority of property owners to agree to lease their land in order for the exploration to happen. There are also clauses regarding environmental protection that can be incorporated into lease agreements. He reported that the environmental health code board of appeals has been discussing these issues, “and I’ll make sure we continue the conversation at that level.”

Communications & Commentary: VEBA, WCERS Special Meeting

County administrator Verna McDaniel reported that there will be a special joint meeting of the boards of the Washtenaw County Employees’ Retirement System (WCERS) and the Voluntary Employees Beneficiary Association (VEBA) retiree health care fund. It will take place on Thursday, June 12 at 1 p.m. in the county administration building’s boardroom, 220 N. Main St. The actuarial reports will be presented for those two plans.

Communications & Commentary: Misc. Public Commentary

Thomas Partridge spoke during both opportunities for public commentary. He urged the board to keep focused on the priorities of ending homelessness, increasing affordable housing, expanding public transportation, and providing better access to health care and education. He also supported Democrat Mark Schauer for governor, so that these priorities can be addressed on a statewide level.

Present: Felicia Brabec, Andy LaBarre, Kent Martinez-Kratz, Ronnie Peterson, Alicia Ping, Rolland Sizemore Jr., Conan Smith.

Absent: Dan Smith, Yousef Rabhi.

Next regular board meeting: Wednesday, July 9, 2014 at 6:30 p.m. at the county administration building, 220 N. Main St. in Ann Arbor. The ways & means committee meets first, followed immediately by the regular board meeting. [Check Chronicle event listings to confirm date.] (Though the agenda states that the regular board meeting begins at 6:45 p.m., it usually starts much later – times vary depending on what’s on the agenda.) Public commentary is held at the beginning of each meeting, and no advance sign-up is required.

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The board’s resolution, which was put forward by trustee Susan Baskett, asks Washtenaw County prosecutor Brian Mackie to reconsider the charges his office has brought against the young men. Included as “resolved clauses” in the resolution were the  following:

THEREFORE, we ask that our students, when required to be accountable through the judicial system and thereby learn from their mistakes, be treated with compassion, fairness, equity, efficacy, and respect for their ability to learn, and
WE THEREFORE FURTHER RECOMMEND that the Prosecuting Attorney, Brian Mackie, consider the best interests of the injured student, the students criminally charged and the community by re-evaluating the degree of criminalization of adolescent behaviors that would be better resolved through a greater emphasis on educational and developmentally appropriate measures relative to harsh charges and convictions.

The board had voted at its Feb. 27, 2013 meeting to place the resolution on the March 13 agenda – over dissent from trustees Andy Thomas and Irene Patalan. The resolution was unanimously passed.

This brief was filed from the board room of the Ann Arbor District Library in downtown Ann Arbor at Fifth and William. A more detailed report of the meeting will follow.

Candidates for Washtenaw County prosecuting attorney, from left: incumbent Democrat Brian Mackie and Libertarian Justin Altman. (Photos by the writer.)

At a forum hosted by the League of Women Voters on Oct. 11, the candidates fielded a range of questions – covering basic biographical background, their approach to customer service, and their views on discretion. Discretion came up in several ways – regarding victimless crimes, sentencing, opposition to parole, and the role of successor judges in granting parole.

Altman is a recent law school graduate who passed the state bar exam in 2011. At the forum, he made his Libertarian values at least an implicit part of his response to several questions asked by the league moderator. He raised the specter of law enforcement officials getting special treatment from the prosecutor’s office. He also questioned whether a prosecutor should use the force of law against defendants who’ve committed victimless crimes.

The only example of victimless crimes Altman gave at the forum related to marijuana, and that led Mackie at one point to wonder what crimes Altman was actually talking about. Mackie said his office spent relatively little of its time with those types of offenses, and he characterized the sentencing for such matters as light. Mackie highlighted the child support orders that his office obtains for 500-600 children every year, and his office’s prosecution of serious crimes. He characterized prosecution as serious work “for serious people.”

Both candidates for county prosecutor alluded to the vice presidential debate – between Democrat Joe Biden and Republican Paul Ryan – that was taking place on the same evening. Mackie referred to the debate in order to make a point about relative importance: For many individuals – like victims of crime – the office of prosecuting attorney is more important than the office of vice president. Altman’s reference to the vice presidential debate was in the context of thanking the LWV for including him in the debate, noting that the vice presidential debate did not have a third-party voice represented.

Altman and Mackie have also given responses to five questions on the league’s Vote411.org website.

The office of county prosecutor handles all felonies and misdemeanors charged under state law. The office also is responsible for juvenile delinquency proceedings, terminations of parental rights in the case of child abuse and neglect, and mental health commitments. The elected position has a four-year term.

The Oct. 11 candidate forum was held at the studios of Community Television Network, and is available online via CTN’s video-on-demand service. Information on local elections can be found on the Washtenaw County clerk’s elections division website. To see a sample ballot for your precinct, visit the Secretary of State’s website. The  Vote411.org website also includes a range of information on national, state and local candidates and ballot issues, and a “build my ballot” feature.

Opening Statements

Both candidates had an opportunity to give a one-minute opening statement.

Brian Mackie: He began by thanking the League of Women Voters and Community Television Network for several years of educating voters – nothing could be more important than that work, he said.

He began his substantive remarks by saying, “I love my job as prosecuting attorney.” The case for his continuing in that office is made by the great, hard-working and ethical staff, he said, which is an outstanding group of public servants that he has assembled. As a team, they protect the rights of the accused, and they support and protect victims of crime. And they protect children in abuse and neglect proceedings. Every year they obtain child support orders for between 500 and 600 children in Washtenaw County. Mackie said that he and his staff worked diligently to help make this a just and safe community.

Justin Altman: He also began by thanking the league and CTN. He allowed that Mackie has made great strides in protecting and representing victims, and also in the family division of the office. But Altman is running for the position of county prosecutor because he contends that Mackie has somewhat of a “blind spot” with respect to “victimless crimes” that are being prosecuted aggressively in the county. Medical marijuana dispensaries are being threatened by an order from the state attorney general, he noted. But luckily the dispensaries have not been shut down, he said. That is one major issue on which he and Mackie would differ, he said. He concluded by thanking everyone and asking people to consider voting for him as prosecuting attorney.

Background

What professional experiences have led you to seek the office of prosecuting attorney? Why do you feel that you are the best candidate for the position?

Brian Mackie.

Brian Mackie: He began by saying that it’s a question of life experience. He’s been a prosecutor, and before that an assistant prosecutor, he said. Before that he was a defense attorney and practiced some civil law. His defense work included defending people charged with a variety of crimes. He noted that several of the assistant prosecutors in his office have also done defense work. As an assistant prosecutor, he tried every kind of case, he said. That included murder and criminal sexual misconduct cases. About 40% of the more than 200 felony cases that he tried as an assistant prosecutor were criminal sexual misconduct cases – which he characterized as some of the most hideous and worst cases that are seen. “I’ve done a good job as prosecuting attorney,” he concluded.

Justin Altman: While still in law school, he worked with the office of the Washtenaw County public defender, he said. He enjoyed working with criminal defendants – trying to make sure that justice was served. He also has a lot of personal experience with the philosophy of liberty, he said, noting that he is running on the Libertarian Party ticket. Part of that philosophy is the non-initiation of aggression. Currently, the government has the rule of law behind it, he said, to use force against “victimless criminals” – people who have not created a victim – and the government uses that power. As a defense attorney, he was able to “swat down” those attempted aggressions one by one, like a bullet from a gun, he said. As a county prosecutor, however, he would use the office and the excellent staff there, to stop shooting those bullets at victimless criminals in the first place.

Prosecutor’s Customers

Customer service is the business of government. Who do you see as your customers, and how can you serve them in the prosecutor’s office?

Justin Altman.

Justin Altman: The basic customers are all the people in the county, he said. Not everyone might use the office of the county prosecuting attorney on a regular basis, he allowed, but everyone expects the prosecution of violent criminals. And he would absolutely use the resources of the attorney’s office to go after those violent criminals to make sure that the community is safe.

More specifically, the prosecutor has customers in the form of the victims of crimes, he said. Resources that are currently devoted to the prosecution of victimless crimes could be redirected to protecting victims and making sure that whatever they’re faced with in court proceedings, they’re well represented, and that victims receive justice.

Brian Mackie: Customer service is absolutely crucial, he began. We have to remember who it is that we work for, he continued. Some people who call up say they pay his salary, and he allowed that it is absolutely true. Everybody in the county – all 347,806 people – are customers, Mackie said, and that includes not only victims of crime, but also those who are accused of crime.

The first line of defense for those who are accused of crime is the prosecutor, he said. In that way, the prosecutor functions as an important defense attorney. The prosecutor makes determinations about what charges, if any, should be brought. And in about 20-25% of the cases where charges are requested based on a police report, the prosecutor’s office denies those charges – because the prosecutor’s office doesn’t think the charges are appropriate, he said. Sometimes that decision could be based on an unconstitutional taking of a confession, or some other irregularity, Mackie explained. But the prosecutor’s office needs to be convinced beyond a reasonable doubt, before it will even charge somebody with a crime, he said.

Prosecutorial Discretion

Do you believe that truth-in-sentencing laws ought to be required to provide more prosecutorial and judicial discretion?

Brian Mackie: “Absolutely not,” Mackie stated. When you talk about sentencing, he said, that’s a very large issue. Despite what you hear, he said, the rate of sentencing to prison in Michigan is low. “Truth-in-sentencing” means that somebody who is sentenced to prison must do their minimum term, he explained. That is to say, there is truth in the sentencing. That’s unlike the old days when a judge and probation officer in the court had no idea what that sentence meant. If we think that sentences are too high, then we should lower them, he said. But truth-in-sentencing applies to a very small percentage of those who are convicted of crime, he noted. Truth in government at every level, including sentencing, is a must.

Justin Altman: He felt the truth-in-sentencing laws are trying to fix a problem, but missing the point. When people are sentenced to prison, they might be reformed within the stated sentencing time – but they might not be. Truth-in-sentencing laws make sure that they serve their sentence – but the laws do not focus on rehabilitation of the criminal or restitution for victims. Altman would like to see a system where people who are sentenced to crimes – if they can prove that they’ve been rehabilitated and made restitution to their victims – should be eligible for early release. But as a secondary concern, once people are sentenced, truth-in-sentencing laws should stay as they are, he concluded.

In what types of cases do you believe such enhanced discretion would be most warranted?

Justin Altman: He indicated that he would use discretion in all cases where there is no victim. If someone does not harm another person – even though they may have broken a nominal law on the books – it’s not a good use of the prosecutor’s resources or the court’s resources to actually bring that case to court and to seek fines, jail time, or prison time, he said. Instead, we should focus on making sure that people have the help they need, if they have serious problems, and making sure that we focus on using discretion in a negative sense – to bring the best charges that we can bring against those who are violent actors in our society.

Brian Mackie: Prosecutors and judges have tremendous discretion now, he noted. As to victimless crimes, the only victimless crime he’d heard mentioned so far involved marijuana – so he didn’t know what other crimes Altman was talking about. For those types of crimes, he characterized the sentencing as low, with opportunities to have no conviction. He characterized the criminal justice system as “not harsh in Michigan, and certainly not in Washtenaw County.”

Plea bargains are by far the largest detriment of prison sentences. What is your view of the appropriateness of incarceration versus community treatment programs for people arrested for victimless crimes?

Brian Mackie: He again noted that it’s important to know which victimless crimes are actually being talked about. Prison is a myth for many people, he said. Why does Michigan have such a high number of prisoners? It’s because Michigan is the most violent state in the Great Lakes region, Mackie said. Michigan has fewer crimes solved than any other state in the Great Lakes region. Michigan has fewer police officers per capita. Michigan has four of the most violent 10 cities in the United States, he said: Detroit, Flint, Saginaw and Pontiac.

We have a real crime problem – and that’s why prisons are crowded, Mackie said. The prison commitment rate in Michigan has crept up. Washtenaw County has traditionally been the second lowest sentencing county in the state, he noted. You have to murder, rape or rob somebody to go to prison. Or if it’s another kind of crime – like stealing cars continually – you have to be a career criminal to go to prison, he concluded.

Justin Altman: For victimless crimes, Altman did not feel that either one of those options – incarceration or community treatment – is appropriate. Forced treatment programs are demonstrably failing at rehabilitating people, he said. People don’t seek rehabilitation or succeed at it until they are ready, he said. He thinks that plea bargaining is an important tool to make sure that justice is served in the quickest, cheapest, most efficient way possible. But for the most part, for charges brought against someone who is a violent criminal or who is a career criminal, then they need to go to court – and as a prosecutor, you need to bring the best case that you can against them, he said. In court, the prosecutor needs to prove his case or the defendant needs to prove his. He did not think that people should be sentenced to prison by signing away their rights.

Parole

In Michigan, successor judges have veto power over the parole board on the parole of lifers. Do you favor proposed legislation that would end this veto power? [A successor judge is one who assumes responsibility for a case, if the trial judge dies, resigns, or leaves office for some other reason before making all judgments in the case.]

Justin Altman: He described it as an issue that he’s not entirely familiar with. He does think that judges should have a say in whether a prisoner should have parole granted. But it’s the people who are working with the prisoners – the parole board, prison staff, guards and warden – who have the best opportunity to tell whether any individual prisoner has been rehabilitated and should be released to society.

Brian Mackie: He opposes the legislation. Judges use prison as a last resort, he said. A sentence of life generally means you’ve committed a very serious offense – murder, generally. The successor judge, in his experience in Washtenaw County, takes the responsibility very seriously. They read everything available about the crime, and they read all the appellate material. They have access to anything in the prison records that they want. He thinks it’s appropriate for judges to use that discretion to look out for the interests of their community.

What do you see as your appropriate role in the parole process? When would you see prosecutorial intervention as warranted?

Brian Mackie: He said there’s a wide disparity of views on the topic. In Michigan, he felt that most prosecutors agree with him – and they only sparingly object to granting parole. There are counties where they object to every parole as a matter of course – and as a result, those counties are not listened to, Mackie contended. If his office objects, then it’s because they know the offender, the defense, and the victims, and there is a reason for it. His office has had tremendous success when they have objected, and they’ve made their case to the parole board for why somebody should not be granted parole. It’s used sparingly by his office, he said. It’s his office’s responsibly to review the list every month of who is being paroled and it’s passed around the office. Someone might remember who had the case, he said – noting that people tend to stay employed in the office a long, long time. The staff look at the case and decide if there’s something special about that person. Generally, if his office objects to the granting of parole, it’s about someone that his office knows will re-offend.

Justin Altman: He called Mackie’s answer very appropriate. He agreed that prosecutorial intervention should only come when there’s a firm belief that the person who is up for parole is going to re-offend and has not “learned their lesson.” It has to be clear and convincing evidence before that action is taken, he concluded.

Open-Ended Question

Ask yourself the one question that you would have liked us to ask you.

Justin Altman: Altman wanted to be asked what his role is as prosecutor in keeping public officials accountable. A lot of cases are brought to court by the prosecutor’s office against people who are trying to hold their bosses accountable in public office, he said. There are also times when police officers get let off easy, he contended, when charges are not brought against them – possibly because they are police officers. He thinks everybody in public office should be first and foremost accountable to the people of the county, and the prosecutor’s office should not look the other way.

Brian Mackie: On hearing Altman’s response, Mackie was mildly animated: “My answer has changed in the last 60 seconds!” The question now, Mackie stated, is “What do I think of Mr. Altman’s answer?” He would agree with Altman that everybody should be treated the same, and everyone should be treated fairly. The accusation that some police officer has gotten a break because they are police officer “is ridiculous,” Mackie said. He said that police officers disagree with his decisions all the time. But in his office they never make decisions about charging someone or not because of friendship or animosity. His office does what it does, based on the law and the evidence, he said.

Closing Statements

Each candidate had the opportunity to give a two-minute closing statement.

Brian Mackie: At the moment the forum was being broadcast, he observed, the candidates for vice president of the United States are debating the future of the country. And that is tremendously important, he allowed. But he assured everyone that there are people in Washtenaw County – especially victims of crime – for whom the prosecuting attorney can be paramount in their lives. The prosecutor’s office sees people on some of the very worst days of their lives. They are people who need tremendous support, and they’re people whose whole lives have been turned upside down. Providing leadership in law enforcement has been something that he’s always believed in and has done.

Prosecution in general is serious work, he said, for serious people. Dealing with so-called victimless crimes is not much of what the prosecutor’s office does, he said. The time-consuming cases are “the cases that you can’t get out of your head,” which involve rapes and murders and terrible assaults on people. Or abuse and neglect proceedings where sometimes the drastic step is taken of removing the child from a home away from their parents so that they can have a chance in life. He reiterated the fact that his office establishes paternity and orders child support payments for 500-600 children in Washtenaw County every year. One way he fights crime on a personal level is to promote quality preschool for children in Michigan. He’s built a good office, he said, with a great staff: “We’ve done good work for the people of this county.” And he deserves to continue in the office for that reason, he said.

Justin Altman: While Mackie had contended that the victimless crimes are a small portion of what the prosecutor’s office spends its time on, he felt that it’s still a waste of time – no matter how small it is. If you go to court on any day when trials and pre-trial hearings are being held, many of those cases are for victimless crimes, he contended. It’s a waste of resources that could be better spent going after the murderers and rapists. He disagreed with Mackie’s assessment of sentencing for victimless crimes, saying he did not feel it was light. When you charge those people, and you waste their resources and take money from them, it wastes their resources that could be spent helping them have a better life despite their problems. Prosecuting them simply compounds their problems, Altman said.

The bigger point, he said, is that he is running for prosecuting attorney as a Libertarian. He thanked the League of Women Voters for inviting him to the debate. He noted that there’s a debate currently going on between the vice presidential candidates [Democrat Joe Biden and Republican Paul Ryan] – and there is no third-party voice on stage for that debate. So he was honored to be there as a third-party candidate, and he hoped that people listening would consider him, even though they might typically vote Democrat or Republican. The changes he wants to make in the prosecutor’s office are small, but would be very impactful, he said. He doesn’t want to change anything about how the office goes about going after child support payments. He wants to change how violence is used by the prosecutor’s office in the name of law, to go after people who are not creating victims.

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The Washtenaw County Trial Court juvenile division anticipates $4,329,042 in reimbursements from the state child care fund budget. Programs supported by these revenues include family foster care, institutional care and in-home care, according to a staff memo. The trial court’s Friend of the Court program is also seeking reimbursements for “services to residents who are seeking to establish paternity and/or child support orders.” Over a three-year period through Sept. 30, 2015, the county expects to receive $11,902,808 in federal revenue, administered through the Michigan Dept. of Human Services. According to a staff memo, the county currently has 18,000 active child support cases, with at least one child per case.

Also related to child welfare, the county prosecuting attorney’s office is requesting $1,102,872 in federal revenue for prosecuting and/or nonpayment of child support cases, and establishing paternity. The funds are also administered by the state Dept. of Human Services, and include a $568,147 county match over the three-year period through Sept. 30, 2015.

Commissioners also approved the application of two state grants for operations in the sheriff’s office. A secondary road patrol grant of $184,464 would fund 1.5 deputy positions, if awarded. And a $196,000 grant from the state Dept. of Treasury would cover costs for the dispatch merger between Washtenaw County and the city of Ann Arbor. That grant is part of the state’s economic vitality incentive program, which encourages intergovernmental cooperation.

This brief was filed from the boardroom of the county administration building, 220 N. Main St. in Ann Arbor. A more detailed report will follow: [link]

An incident last year at Hollywood and North Maple in Ann Arbor was originally described by some as a hate crime against an Arab-American girl. Instead, the girl was charged with disorderly conduct, and recently found guilty by a jury.

The episode prompted a media blitz by the advocacy group Council on American-Islamic Relations and calls for investigations by state and federal civil rights agencies.

The tenor changed little when the Washtenaw County prosecutor’s office charged the alleged victim, signaling that authorities believed the then-16-year-old shared culpability in the incident.

At the time, Nabih Ayad, a lawyer representing the girl, called the charge “outrageous.”

A jury has disagreed, and later this month the teen will be sentenced on two counts of disorderly conduct.

In all, four young people – then all students at Skyline High School – were charged with crimes related to the incident that began as a school bus dropped students off near their homes on Maple Avenue.

However, Ann Arbor police were unpersuaded by claims that Arab-American teens were the victims of crime motivated by bias. In fact, investigators found evidence that contradicted much of what the 16-year-old Arab-American girl had said about the altercation that left her with an injury reportedly requiring half a dozen sutures.

She was not “jumped” or assaulted by a “mob,” says Beryl Goldsweig, the assistant Washtenaw County prosecutor who tried the case. On the contrary, independent witness accounts suggested the teen was a willing participant or even aggressor in a series of scuffles with another 16-year-old girl, an African-American.

“No one touched her except the one other girl,” says Goldsweig. “It was just a fight between two kids and the jury saw that.”

Ordinarily, the matter wouldn’t be of much interest beyond the families of the young people involved. But in this case, CAIR and Ayad, the girl’s attorney, had raised the profile and the volume:

• Detroit and local news organizations covered the story of a potential hate crime.
• The director of the state Department of Civil Rights issued a statement calling on the school district to implement conflict resolution and “cultural competency” programs.
• “We went to the Islamic center in Ann Arbor to talk with congregants,” says Dawud Walid, who heads the Michigan chapter of CAIR based in Southfield. “They were very concerned.”

“That group got a hold of it and ran with it,” says AAPS spokeswoman Liz Margolis, referring to CAIR.

Ayad and the Council on American-Islamic Relations

Ayad keeps a high profile himself.

A Granholm appointee to the state Civil Rights Commission, he is – according to the commission website – the chairman for the American-Arab Anti-Discrimination Committee. Last month, The Arab-American News reported that he hosted a fundraiser for Democratic gubernatorial candidate for governor, Virg Bernero, at his home in Canton.

Nabih Ayad, in a photo printed in the Michigan Dept. of Civil Rights 2009 annual report. Ayad is a member of the state’s Civil Rights Commission.

Ayad was among the plaintiffs in the American Civil Liberties Union 2006 suit against National Security Agency’s warrantless wiretapping program. He also represents the family of Luqman Ameen Abdullah, the imam of a small Detroit mosque who was killed in a raid by federal agents in October 2009.

And he’s a target for critics – like conservative pundit Debbie Schlussel, who peppers her commentary with assertions like, “Islam is not an ethnicity, CAIR – it’s an intolerant cult.”

Ayad represented the Arab-American girl when the disorderly conduct case was heard in juvenile court last month. But he did not respond to repeated Chronicle requests for an interview about the outcome of the case or the rhetoric around it.

CAIR’s Dawud Walid did.

“Any time a constituent is saying their child was assaulted and was called names, and had her head scarf ripped off, it’s sufficient premise for us to ask to have it investigated as a potential hate crime,” Walid says.

The possibility that someone involved in an altercation might be less than truthful is problematic, he allows. “That’s why the facts have to be discerned and why we asked for it to be investigated as a possible hate crime.”

However, the facts discerned by investigators – and affirmed by the jurors who last month listened to accounts presented by Ayad and Goldsweig – are not yet reflected in information on CAIR’s website or in any public statement. Instead, the website continues to carry information about the incident that’s largely at odds with the evidence gathered by police and accepted in juvenile court. From CAIR’s website:

On Tuesday [9-8-09], two Ann Arbor Muslim students were assaulted on a school bus by a mob of youth. One of the students, a 16 year old female, had her hijab ripped off and was told “F*** Arabs; they’re dirty.” “Why are you wearing a scarf?!”

Walid does not dispute the conclusions of the 22-page police report that was the foundation of the prosecution case against the teen.

But he declines to address questions about updating or amending material on the website to reflect the outcome of the criminal case. He similarly deflects questions about the potential harm done by alarm that, if one accepts the jury’s conclusion, was unnecessary.

“The major thing we asked for was that this be investigated as a potential hate crime based on what the complainant said. The prosecutor said the facts around case didn’t merit that.

“I wasn’t at the trial,” he says, though, “I’m somewhat familiar with the outcome.”

Yousuf Vaid, president of the Muslim Community Association of Ann Arbor, says CAIR does speak for the local Arab-American community. He referred all questions to the organization.

The Investigation: No Mob, No Ethnic Slurs

What investigators found was very different than that CAIR description.

No mob, no slurs. There was a second Muslim student, a brother of the girl in the eye of the storm. But his involvement didn’t come until long after the Skyline High School students had left the school bus that was bringing them home to North Maples Estates, on the city’s northwest side.

Here’s what did take place, according to authorities. (It is, again, a version Ayad failed to upend in court and declined to discuss for this story.)

There were hostilities brewing on a school bus. The driver got those involved to settle down.

Map detail of North Maple and Hollywood in Ann Arbor. North Maple is the four-lane road running north/south on the right side of this map. (Links to larger image)

When the bus reached a regular stop on North Maple Avenue and Hollywood, the Arab-American girl got off. Her foe, an African-American girl then also 16, was much farther back in the bus, the driver told authorities.

“The bus driver estimated it took the second girl 15 to 30 seconds to work her way forward and disembark,” says Goldsweig, the assistant prosecutor. The Arab-American girl could have started to walk home but apparently chose to wait for the other girl to leave the bus.

“There’s no way the other girl pulled off the hijab (or head scarf) as the Arab-American girl was exiting the bus, as she claimed,” says Goldsweig. “They were nowhere near one another at that point.”

Once on the street, though, the two began to fight.

“It was two girls fighting,” says the assistant prosecutor. “They were pulling on each other, pulling hair. That’s when the head scarf must have come off.”

A passing driver saw the fight and shouted at the girls to stop.

That driver, who became a witness, provided information about an injury the Arab-American girl had suffered at that point and about subsequent behavior that helped police unravel the story.

The driver was a “good Samaritan,” says Washtenaw County Prosecutor Brian Mackie. The woman was also a disinterested party who therefore made a credible witness, says Mackie, who’s part of the Michigan Alliance Against Hate Crimes.

The fight did, in fact, stop.

The African-American girl left the bus-stop area, heading down Hollywood to Vine Street and a well-worn footpath that serves as an alternate route to North Maple Estates.

The Arab-American teen then pursued her.

“The Arab-American started to walk down Maple Avenue toward home,” says Goldsweig. Then, according to witness accounts, the teen threw her books on the ground and went the other way, following the other girl.

Another fight began.

This time, two boys – then age 15 – put their hands on the Iraqi-American girl’s brother, also 15, apparently to prevent him from aiding his sister.

Those youths, both African American, were charged with assault.

The girls were charged with two counts each of disorderly conduct, misdemeanors. The African-American girl entered a guilty plea, which led to the dismissal of one of the charges.

The Arab-American girl wanted a jury trial. That took place last month. Sentencing is scheduled for Aug 19. The sentence will likely be community service, fines and fees, and an order to stay of trouble, says Goldsweig.

Other assertions about adult involvement or the Arab-American girl being “dragged” to a home were simply unfounded, says Goldsweig, who also prosecuted the duo charged with assaulting the Arab-American boy.

“The young lady couldn’t keep her story straight,” says Goldsweig. “She talked about going down the footpath to find her headscarf when it had come off near the bus stop. She said the African-American girl’s mother was responsible for the cut on her head, but the witness in the car saw the injury back at the bus stop and actually called out to the girl that she was bleeding.”

Three police officers testified at the trial. Several others had also worked on the case.

Hate Crimes: A Broader View

Michigan’s law on hate crime, or ethnic intimidation, dates to 1988. It adds to the penalty in cases where an offender is found to have committed a crime motivated in whole or in part by bias against a race or national origin, religion, sexual orientation, mental/physical disability or ethnicity.

The state regularly has one of the highest incidences of reported cases (726 in 2008 and 914 in 2007), perhaps due to reporting practices.

“Accurate data collection of hate crimes depends heavily on proper training of law enforcement to recognize such incidents and the cooperation and desire of communities/victims to report these incidents to law enforcement.” –Michigan Incident Crime Reporting

Bias against African Americans is the most prevalent of the reported crimes.

Recent reports also include crimes based on bias toward lesbians, gays, bisexual and transgendered people; Hispanics; members of the Jewish and Islamic faiths; and those of other, unspecified, ethnicity and national origin. Anti-white bias accounted for more than 20% of the incidents statewide in 2008. [.pdf files of 2007 and 2008 Michigan hate crime reports]

This chart shows a subset of 2008 hate/bias crimes in Michigan: Incidents that took place at residences. Of the 252 incidents reported, 52 involved neighbors.

In Washtenaw County, there were 38 reported hate or bias incidents in 2007 and 24 in 2008, the most recent years data is available. That’s one incident per every 9,149 county residents in 2007 and one in every 14,487 residents in 2008. Statewide, the incidences for those years were one per 10,904 and one per 13,732 residents, respectively.

In Washtenaw County, African-American and LGBT residents were most often the targets of such crimes. Members of those groups represented more than 60% of the victims in 2007 and 75% in 2008.

There was a single report of an anti-Islamic bias crime in Washtenaw County during those two years. Statewide there were seven anti-Islamic incidents in 2007 and 20 in 2008.

The reports include a category of bias toward other, unspecified, ethnicity and national origin. There were two during the two-year period in the county; 31 over the two years statewide.

Arrests are more rare than incidents.

There were no ethnic intimidation charges in 2009 or 2010. There were four in 2008, one in 2005, two each in 2004, 2002 and 2001, and one in 2000, said Brian Mackie, the county prosecutor.

A small number of incidents in the data sets were crimes against a business or institution rather than an individual.

Nabih Ayad, the attorney representing the Arab-American girl in last year’s incident, had called for a U.S. Justice Department investigation. The department’s Civil Rights Division declined comment. A spokesman says the division’s general rule is not to discuss possible complaints.

The state Civil Rights Commission bowed out because Ayad, a member of the commission, was representing the Arab-American family, says spokesman Harold Core. “That’s done to avoid any conflict of interest.”

Reflections a Year Later

The so-called Skyline incident leaves city residents like Leslie Krauz Stambaugh with mixed emotions.

“I was so disturbed when I heard about it last fall,” says Stambaugh, chairwoman of the city’s Human Rights Commission. “I imagined a demur young girl with her head scarf pulled off.”

(In contrast, the school bus driver told authorities the girl left the bus telling the other girl she would “beat your ass” and other obscenities.)

“I’m glad to know that didn’t happen,” says Stambaugh, “but it doesn’t mean there aren’t serious problems out there.”

The city commission had no role in reviewing the episode. Its task is to advise the city council, focusing on trends rather than individual cases, she says. But commission members are also working to create a “community response group” that could offer assistance to police, victims or others in the community.

Coordinated by the commission, the fledgling group is a network of organizations including local schools, the NAACP, sheriff’s department, Dispute Resolution Center, University of Michigan’s Department of Public Safety and others.

“We’ve been working on this for a while. The idea would be to find out what’s going on and what resources might be helpful without taking sides,” says Stambaugh. “I can also see that we need to think about getting accurate information out… and how to be as sure as possible of what’s accurate.”

That would undoubtedly suit Ann Arbor schools’ spokeswoman Liz Margolis.

“We have many programs that teach tolerance and understanding and different cultures starting in elementary school,” she says. They’re part of the curriculum and the focus of special programs and events.

More than 70 languages are spoken in the school district, Margolis notes.

But after last year’s start-of-school fight, she said, “we were looked at as not doing anything about it.”

Indeed, a headline based on then-state Department of Civil Rights Director Kelvin Scott’s statement about the importance of the district engaging in these issues is featured in the department’s 2009 annual report: “Rights office urges Ann Arbor schools to cool ethnic tensions following beating” – from the Sept. 12, 2009 Detroit News. (Scott died of cancer in February.)

“For us, it was a fighting incident, not ethnic intimidation,” says Margolis.

The same four students later charged with crimes were suspended. The Arab-American family subsequently withdrew from the school, Margolis says. Those children had not previously attended Ann Arbor schools.

Setting aside this particular incident, Michigan continues to be in the top five on the FBI’s annual hate crime report, observes Stambaugh, currently fourth behind California, New Jersey and New York. “That tells me there’s plenty to worry about, but we’re interested in easing tensions, not adding to them over things that, in hindsight, appear to be unfounded.”

Mackie is more blunt: “A great disservice was done to the people the advocates involved say they want to help. This is an example of people who fit things into a narrative that matched their world view and weren’t interested in looking any further.

“I can sum up the lesson from this in two words,” he says, “Shirley Sherrod.”

Sherrod is, if course, the African-American woman fired from a top-level job in the U.S. Agriculture Department when Obama administration officials acted on what appeared to be anti-white bias in a video clip – without looking at the entire video for context or talking to Sherrod. A public apology followed.

“If we did our business in that fashion,” the prosecutor observes, “the world would be a scary place.”

About the writer: Judy McGovern lives in Ann Arbor. She has worked as a journalist here, in Ohio, New York and several other states.