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Posted on Tue, Mar 23, 2010 : 2:23 p.m.

Ann Arbor council members asked to tweak rules for using e-mail

By Ryan J. Stanton

Ann Arbor City Council members will be asked next month to consider changes to council rules that would force them to use their public e-mail accounts - instead of private e-mail accounts - when conducting city business electronically.

That's included as part of a settlement agreement reached Monday between the city of Ann Arbor and three co-plaintiffs who sued the city over the South Fifth Avenue parking structure project.

Jerusalem Garden.jpg

Customers of Jerusalem Garden, and the nearby Herb David Guitar Studio, will park for free downtown during construction of the Fifth Avenue underground parking structure.

In a 12-page document signed by all parties to the lawsuit, the Herb David Guitar Studio, Jerusalem Garden and the Great Lakes Environmental Law Center agreed to drop their case. In return, they ask the city to comply with certain demands.

While some of the demands are binding under terms of the agreement, the one asking council members to change their rules merely requires the council to consider it.

The suggested text of the amendment reads, "City Council members will use their city e-mail accounts when sending e-mail communications about substantive city business, to the extent feasible. This rule does not cover communication to constituents or residents or communication regarding political activity."

City Attorney Stephen Postema said the council is under no obligation to adopt that amendment. Council members ultimately can vote however they want on it in April.

"There's no implication that they're not using their city e-mail accounts," he added. "It's just a council rule that they would do that on substantive city business, which to my knowledge they do."

Since last August, the plaintiffs in the lawsuit had alleged the building of an underground parking garage on South Fifth Avenue presented claims for nuisance, trespass, violation of the Michigan Freedom of Information Act and the Open Meetings Act, as well as a violation of the Michigan Environmental Protection Act.

At the center of the Open Meetings Act claim were allegations that council members discussed the project with each other via e-mail during a public meeting. Postema said none of the actions by council members violated the state's sunshine laws.

The settlement agreement signed Monday dictates that the city follow certain steps for handing the construction process to minimize the impact on Jerusalem Garden and Herb David.

Throughout the construction process, the city has agreed to provide two-hour free parking validation stickers to the customers of Herb David and Jerusalem Garden to compensate for the loss of parking space resulting from the construction project.

In addition, the city will continue to document the structural condition of the properties that house Jerusalem Garden and the Herb David Guitar Studio every six months to determine whether the construction process is causing any structural damage. The city also will provide the businesses with at least 72 hours notice of any pilings being driven into the ground and will provide weekly e-mail updates on the progress of the construction.

The city also must give the businesses 72 hours notice before any major construction event that is likely to result in the public having limited access to Herb David or Jerusalem Garden, such as the closing of Fifth Avenue. The city plans to take several other actions to lessen the impact on the businesses, including placing barriers on site and providing signage that directs customers to both businesses.

Lastly, in response to concerns raised by the Environmental Law Center, the city has agreed that its environmental staff, working with staff of the Downtown Development Authority, will conduct an environmental study following five specific steps:

Step 1. The study will list all decisions regarding public parking that have been made by the DDA or the city since the 2007 Ann Arbor Downtown Parking Study and determine the difference in the overall number of public parking spaces available in Ann Arbor in 2011 (assuming the new garage is completed in 2011) compared to the 2007 study level. If the difference is a net increase of 100 or fewer public parking spaces, then the new study will be deemed to be complete. If the difference is a net increase exceeding 100 spaces, then the new study will continue to Step 2.

Step 2. The new study will estimate the expected number of cars seeking public parking in 2011. If parking demand is expected to decrease from 2007, the study will be deemed to be complete.

Step 3. The study will estimate how many of the additional cars could be accommodated by the net increase in the number of spaces determined in Step 1. That figure will then be multiplied by an estimate of the additional vehicle miles traveled. An emissions factor will then be applied to the number of vehicle miles to estimate the greenhouse gas emission impact from net additional vehicles that could be accommodated by the parking structure. It is understood that the 2007 study's survey had insufficient sampling and insufficient statistical power to generate the additional vehicle miles traveled, and therefore, the new study will be an educated guess with significant uncertainty, and not a scientific determination of such emissions.

Step 4. The new study will identify new measures, policies, and actions that may mitigate any estimated greenhouse gas impact of the additional cars seeking public parking that can be accommodated by the new parking structure. This may include new measures, policies, and actions to offset and reduce greenhouse gas emissions in furtherance of the city's resolution to reduce greenhouse gas emissions 20 percent from 2000 to 2015.

Step 5. An opportunity for public participation will occur prior to the new study being finalized. That will consist of a minimum of one public hearing and one opportunity to submit written comments.

Ryan J. Stanton covers government for Reach him at or 734-623-2529.


Steve Bean

Wed, Mar 24, 2010 : 1:50 p.m.

The difference today, Tom, is that with email and texting capability council members could discuss matters *during* a meetingand have done sowhile decision-making deliberations are underway. Also, they can communicate with multiple peoplepotentially a quorumas if a hidden conference call were being conducted, for example, on how to respond to an amendment under consideration during a meeting, or whether to offer it in the first place. Such conduct during a public meeting has not been and would not be transparent. Council members will still be able to communicate outside of public meetings as you've described, even with email. I'm not aware of anyone having suggested otherwise.

Tom Wieder

Wed, Mar 24, 2010 : 11:25 a.m.

I am a strong believer in government transparency and the Freedom of Information Act (FOIA), but I think that we should keep this email issue in perspective. Before email existed or was so extensively used, most of these communications would be done by phone, with Councilmembers making calls on any phone they chose - phones in their homes, at their offices, at a friend's house. There was no record to FOIA, and such one-to-one communications weren't - and to this day, aren't - subject to the Open Meetings Act. Even public officials are allowed to have private communications with each other, about city business, using whatever medium they choose. If they use public facilities, FOIA will probably apply to any "document" (including an email record) that they make, but they can still talk on the phone, meet in person, even send letters from their homes or private offices, and these are private communications. The public is not entitled to know everything a public official writes or says to every other person, even about public business.


Wed, Mar 24, 2010 : 4:54 a.m.

For those of you that think it's ok for them to use private email accounts to do business, you might want to know how things really work in the city. When I log onto my account in the city and now try to go to to access MY private account, the IT department as blocked that site in the firewall. Interesting that they can use their private email accounts to run the city, but no one else in the city is allowed. Transparency? That's just a word the council likes to use. It means nothing to them.

Lifelong A2

Tue, Mar 23, 2010 : 9:12 p.m.

Regardless of whether the plaintiffs' e-mail request makes sense, this settlement is a joke. After all the fanfare, the plaintiffs won no money, the parking garage will be built, and the e-mail proposal is just that -- a proposal, not a requirement of the settlement. The plaintiffs and their attorneys should be ashamed that they wasted so much time and effort on what was -- as illustrated by the settlement -- a frivolous lawsuit.


Tue, Mar 23, 2010 : 4:24 p.m.

"Why would a council memeber need to use a private account to facilitate city business?" Maybe it's to conduct private business when at a city meeting? If I were on counil I would sent anythign not regarding to the city on private email so it couldn't be "mistankenly" FOIAd.


Tue, Mar 23, 2010 : 4:13 p.m.

Transparency is a must, using a public email account is a must. What is there to conceal from public view.....? Why would a council memeber need to use a private account to facilitate city business?

Interfaith Council for Peace and Justice

Tue, Mar 23, 2010 : 2:24 p.m.

I think using public email accounts is important in case there are any FOIA requests. Making sure this happens will be a bit of a challenge, but I think it's the correct policy.


Tue, Mar 23, 2010 : 2:09 p.m.

They should use whatever e-mail account they choose. This is just another overblown reaction and people wanting to micromanage everything about a person.