Parking ramp lawsuit shows legal jeopardy created by secret City Council e-mails
For Ann Arbor City Council members who secretly traded e-mails during meetings, now comes the reckoning. And no, we’re not talking about City Councilman Leigh Greden being voted out of office, pending a recount of the primary vote.
We’re talking about the lawsuit that the Great Lakes Environmental Law Center and two local businesses have brought against the city, alleging that council members violated the state’s Open Meeting Act by secretly e-mailing each other during a discussion on the proposed $58 million underground parking structure.
The lawsuit seeks to block construction of the parking structure on several other grounds as well. But this challenge to the council’s shadow deliberations makes it clear just how seriously this behavior exposed the city to legal liability and undermined the credibility of council decision-making.
If anything, the public indignation over the e-mails has focused too much over the snide nature of some of the comments, and too little on the question of whether council violated the law by exchanging e-mails on issues it was deliberating.
We wish this were about snarkiness. In that case, council members could apologize, be nicer, and accept the judgment of voters about their behavior. In the 3rd Ward, voters have spoken, voting a smart and hard-working council member out of office, presumably as much over the e-mail issue as anything else.
But the implications of these secret e-mails go way beyond that. Last February, during a discussion over the proposed parking ramp, at least six council members exchanged private e-mails on a question of whether they should postpone the project - leaving the public unaware a postponement was even being considered.
The state Open Meetings Act is clear in saying that when a public body is deliberating toward a decision and a quorum is present, that discussion must take place in public.
The act, created in the 1970s, did not envision things like e-mails or instant messaging. And it certainly never envisioned elected officials, sitting in open session, using technology to have a discussion behind the public’s back.
There is a gray area here, in that courts have generally found it’s not illegal for elected officials to privately poll each other on how they might vote on an issue, as long as they’re not deliberating toward a decision.
Did that happen in this case? Due to the questionable behavior of council members, the city is now vulnerable in costly litigation that seeks to answer that question.
Beyond the legal fineries, the idea of council members sitting in open session and secretly discussing issues, rather than just having an open discussion in front of the people they serve, sets the very concept of the Open Meetings Act on its head.
Last week, council members said they are considering a new policy that would ban e-mails during meetings. This is such clearly inappropriate behavior, it’s mind-boggling that council hasn’t already stopped doing it.
Councilman Mike Anglin also proposes an online database that would let the public see all e-mails among council members dating back to 2000. That would help lift the cloud over past council decisions as people are left to wonder what else may or may not have been discussed secretly while decisions were being made. When council members agree to stop e-mailing each other during meetings, and they must, that will be an admission that what they were doing was wrong in the first place. With a lawsuit now pending, the consequences of that disingenuous behavior could hang over the city’s head for some time to come.
(This editorial was published in today's newspaper and reflects the opinion of the AnnArbor.com editorial board.)
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