City Council creates closed Water Street committee

By Dan DuChene
Apr. 8, 2009    ·    4:11 a.m.

The Ypsilanti City Council voted to establish a subcommittee to discuss issues pertaining to the Water Street project Tuesday night.

The committee was established to allow three councilmembers to meet with staff members in closed session to discuss development and property sales on the stalled project.

Councilmembers Michael Bodary, D-Ward 2; Brian Robb, D-Ward 3 and Peter Murdock, D-Ward 3, were approved by City Council to sit on the committee in a 5-2 vote.

Mayor Paul Schreiber and Councilmember Bill Nickels, D-Ward 2, voted against the resolution.

Robb made the motion, filling blanks in the proposed resolution with his committee member selections. There was little conversation between councilmembers before Murdock motioned to call the question.

“I think it would be good to have the mayor as one of the subcommittee members,” Schreiber said after Robb made his motion.

Schreiber referenced the resolution’s request for litigation, which recommended that the mayor and two councilmembers sit on the subcommittee.

“I don’t have any problems with the way it was read,” Councilmember Lois Richardson, D-Ward 1, said.

Schreiber said, “I would ask council to make an amendment to add the mayor.”

Murdock then motioned to call the question, and was seconded by Richardson. A 5-2 vote closed debate on the topic. Schreiber and Nickels voted against.

In the communications from the mayor section of the agenda, at the end of the meeting, Schreiber said he had received an e-mail addressed to every councilmember who would be on the committee.

“I felt we needed to discuss this in open session,” he said, stating he had not replied to the e-mail.

“I’m very disappointed,” Schreiber said. “I don’t believe this was a good representation of council.”

The Michigan Open Meeting Act requires public governmental organizations to conduct business in open and announced meetings.

After the meeting, Murdock confirmed he had sent the e-mail Schreiber had mentioned. He said he did not believe sending the e-mail was a violation of the act, as no decision was being made.

“If you can’t communicate with each other, you can’t get anything done,” Murdock said.

After the meeting, Robb said the e-mail was a simple question asking who wanted to be on the board. When asked why he chose the specific councilmembers he had named in his motion, Robb said, “I just decided myself.”

Robb said he chose Murdock because of his “better grasp of government.

“I don’t think anyone knows the numbers like I do,” Robb said.

He said no one else had shown interest.

“I would have gladly proposed an amendment,” Robb said.

During the meeting, Mayor Pro Tem Trudy Swanson, D-Ward 1, cited Schreiber’s State of the City Address in response to the comments he had made. She said the February speech did not mention Ward 1.

“I think that’s the way the vote went,” Swanson said. “We did it in a democratic way.”

Richardson said she agreed with Swanson, saying the “accusation was unfair” of Schreiber.

“Often, we’re kind of ignored,” she said. “Certainly we were left out of the state of the city.”

Richardson said she had not read the e-mail. “I didn’t know anything until the resolution was read.”

After the meeting, Richardson was asked if she didn’t mind not having any representation from Ward 1 on the committee.

“It’s not that I don’t mind,” she said. “I think it would have been good.”

Richardson said she thought the three representatives from City Council would “do well.”

Additionally, Richardson said she would be open to changing the committee members at a later date.

However, the request for legislation provided to City Council for the resolution said in order to avoid having to abide by the Open Meetings Act, “the committee members do not rotate (meaning three may be selected and must be the same consistent three)”

After the meeting, Swanson said she had mentioned the lack of Ward 1 references in Schreiber’s speech because, “You vote like you’re voted upon.

“If you don’t give me what I want, I won’t give you what you want,” she said.

“You scratch my back, I’ll scratch yours,” she said. “It’s politics.”

Page 31 of the Michigan government’s guide to the Open Meetings Act cites a 1992 court case called St. Aubin v. Ishpeming City Council.

The summary says, “An informal canvas by one member of a public body of all the members of the body is not a meeting for purposes of the
Open Meetings Act.”

Committee to avoid state sunshine laws
The resolution passed by City Council to establish the subcommittee referenced several Michigan attorney general opinions.

City Attorney John Barr cited the opinions as reasons the subcommittee could remain closed and not have to abide by the Michigan Open Meetings Act. Those are opinions 5183, 6636, 6668, 6752 and 7061.

The resolution’s request for legislation, authored by April McGrath, director of administrative services, said there was concern among staff and councilmembers about having to abide by the state Open Meetings and Freedom of Information acts, as many developers prefer to remain anonymous.

Like the Open Meetings Act, the FOIA is designed to increase transparency in government. It allows individuals the right to request most documents and information produced by a government entity.

The city's concern in the request for litigation is the ability to request documents created at the meeting using FOIA.

“City Attorney Barr indicated since this sub-committee is advisory in nature it should be unnecessary and is not required to create records of the sub-committee meetings,” McGrath said in the document. “If any records are created during these meetings then they would be subject to FOIA."

The Open Meetings Act defines public body as “any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee thereof performing an essential public purpose and function pursuant to the lease agreement.”

On page 29 of the state’s guide to these sunshine laws, a 1980 court case called Arnold Transit Company v. City of Mackinac Island is cited as saying, “Public bodies cannot call themselves ‘committees’ to avoid the requirements of the Act.”

Finally, on page 33 of the same guide, attorney general opinion 5285 is cited as saying, “a public body may not hold a closed session for the purpose of discussing the disposition of real property by sale or lease.”

Stay tuned to the Ypsilanti Citizen for details on this story as they develop.

Related Story: City eyes Water Street finances