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Ann Arbor Vs Open Meeting Laws


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Column: Open Meetings and Marijuana

Councilmember Rapundalo's "clarification" lacks clarity

By Dave Askins

 

September 12, 2010

 

During the Ann Arbor city council's Aug. 5, 2010 deliberations on a medical

marijuana moratorium, councilmember Stephen Rapundalo (Ward 2) described how

the council had discussed the issue and given the city attorney a directive

to draft a moratorium so that it could be brought to that evening's meeting.

Later that night, Rapundalo told The Chronicle he'd been referring to a

discussion that took place during a closed session on July 19.

 

 

http://annarborchronicle.com/2010/09/12/column-open-meetings-and-marijuana/comment-page-1/?scrollTo=comment-52552

 

New story ..

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It seems quite obvious that the council violated the OMA.

 

The Council’s July 19 minutes state that they went into “CLOSED SESSION UNDER THE MICHIGAN OPEN MEETINGS ACT, INCLUDING BUT NOT LIMITED TO, LABOR NEGOTIATIONS STRATEGY, PENDING LITIGATION, AND ATTORNEY/CLIENT PRIVILEGED COMMUNICATIONS SET FORTH OR INCORPORATED IN MCLA 15.268 ©, (E), AND (H).”

 

Sec. 7(1) of the OMA mandates that: “the purpose or purposes for calling the closed session shall be entered into the minutes of the meeting at which the vote is taken.

 

Sec. 7(2) says that “A separate set of minutes shall be taken by the clerk or the designated secretary of the public body at the closed session. These minutes shall be retained by the clerk of the public body, are not available to the public, and shall only be disclosed if required by a civil action filed under section 10, 11, or 13.”

 

Section 3(2) requires all “decisions of a public body shall be made at a meeting open to the public.”

 

The Chronicle’s reported that councilmember Stephen Rapundalo acknowledged that the council discussed a possible medical marijuana moratorium during their July 19 closed session, in which they had “given the city attorney a directive to draft a moratorium so that it could be brought to that evening’s (Aug 5) meeting.”

 

I’m wondering what pending litigation the council was discussing in closed session.

 

I’ve prevailed in several OMA lawsuits against local officials in NW MI and the judge in those cases forced them to identify the actual case caption in their motion to go into closed session because they always did it so lackadaisically.

 

The only way to possibly find out what happened during that closed session - and what decisions they may have made during it - is to file a lawsuit in circuit court and get a judge to force them to release the closed session minutes.

 

It appears as though the council is refusing to admit and voluntarily cure their violations of the OMA so someone needs to pony-up and sue them to get some answers.

 

It only cost $150.00 to file a complaint in circuit court.

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Unfortunately unless the Chronicle sues the city there really isn't much that will be done to them. "We" have sent complaints to the state as well as the AG about former boards who have violated the act and nothing was done! I certainly hope they sue the bunny muffin out of them! I'm so sick and tired of politicians and appointed officials who feel they are above the laws.

 

Dizz

 

http://www.legislature.mi.gov/documents/Publications/OpenMtgsFreedom.pdf

It's very clear what you can and can't discuss in closed session

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To the City of Ann Arbor’s Freedom of Information Act Coordinator:

 

September 24, 2010

 

I am hereby requesting the following public records under the authority of Michigan’s Freedom of Information Act:

 

1. All documents and public records (including letters from any attorneys) that were discussed or possessed during the Ann Arbor City Council’s closed session on or around July 19, 2010. Specifically, I’m interested in those public records which pertain to the city’s closed session for pending litigation or attorney/client privileged communications.

 

2. All public records, including emails, pertaining to any moratoriums regarding marihuana issues in Ann Arbor. Please include all relevant public records that were exchanged between all persons, including, but not limited to any Ann Arbor City Council members, attorneys, city employees and contractors, or city committee/commission members. This request is only asking for public records (including emails) that were generated or exchanged between November of 2008 and September 24, 2010.

 

Thank you for your time,

 

Eric L. VanDussen

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This request is only asking for public records (including emails) that were generated or exchanged between November of 2008 and September 24, 2010.

Love the hutzpah! Truly inspiring!

 

as an IT guy, i LOVED the part i quoted about "only asking" for all public records INCLUDING EMAILS for roughly a two year period! make them work for the dollar they earn!

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On Wed, Sep 29, 2010 at 12:56 PM, Foondle, Laurie <LFoondle@a2gov.org> wrote:

 

Hello,

 

I am in receipt of your FOIA request of September 24. It is estimated that the processing of your request will result in approximately a $65 charge to you (mostly based on IT staff time to perform search/retrieval). Can you let me know if you are in agreement with paying the processing charge and, if so, I will send a letter requesting a deposit of half the amount.

 

Thank you,

 

Laurie Foondle

FOIA Coordinator

City of Ann Arbor

100 North Fifth Avenue

Ann Arbor, Michigan 48107

734-794-6140 x. 41413 (phone)

734-994-8296 (fax)

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Hello Ms. Foondle,

 

Yes, I would like you to provide me with a detailed estimate of your costs.

 

Are your council members going to perform their own search of their email accounts for the requested items?

 

It seems as though all of the items I'm requesting are going to be provided to the Ann Arbor Chronicle during the discovery phase of their OMA lawsuit against the City of Ann Arbor.

 

Therefore, I am requesting that you waive any potential fees that would be assessed against me because the City of Ann Arbor needs to compile all that information for your attorneys so that they can defend against the OMA lawsuit.

 

Additionally, I believe a fee waiver would be in the public interest in this instance.

 

Thanks,

 

Eric L. VanDussen

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  • 3 months later...

http://www.annarbor.com/news/judge-disagrees-ann-arbor-officials-broke-the-law-by-having-secret-discussions-about-marijuana-polic/

 

Ann Arbor officials didn't violate law by having 'secret discussions' about marijuana policy, judge says

 

 

An online news organization's lawsuit claiming Ann Arbor City Council members broke the law by having "secret discussions" about medical marijuana policy has been thrown out of court.

 

Washtenaw County Circuit Judge Melinda Morris dismissed the case brought by the Ann Arbor Chronicle after hearing oral arguments on Wednesday.

 

“Judge Morris correctly dismissed the lawsuit brought by the Ann Arbor Chronicle because it had no legal merit," City Attorney Stephen Postema said in a statement.

medical_marijuana.jpg

 

The city of Ann Arbor successfully defended itself in a lawsuit that alleged City Council members held illegal closed-door discussions about regulating medical marijuana dispensaries in the city.

 

File photo

 

"The court ruling is not surprising," Postema added, "given that the council did absolutely nothing wrong by attending a properly called closed session on July 19 — as even a most basic reading of the Open Meetings Act and relevant case law demonstrates."

 

The Chronicle sued the city in September, claiming City Council members violated the state's Open Meetings Act by formulating plans for a moratorium on new medical marijuana dispensaries behind closed doors on July 19. The lawsuit alleged council members privately discussed and possibly gave directive to the city attorney in closed session.

 

Following that meeting, the City Council voted Aug. 5 on a temporary moratorium to stop any new medical marijuana dispensaries from opening in Ann Arbor. The moratorium remains in effect as city officials continue to craft regulations for marijuana businesses.

 

Postema said the court recognized the City Council is authorized by statute to go into closed session to discuss attorney-client privileged communications. He said the Chronicle's attorney "was evidently aware of the relevant law in this matter but nonetheless chose to pursue this case for reasons unknown. This is unfortunate."

 

Chronicle editor Dave Askins and his attorney said on Thursday they're looking forward to exploring opportunities to appeal the court's ruling and establish new case law that will bring the allowable use of closed sessions back in line with the spirit of the Open Meetings Act.

 

"We respectfully disagree with the court's opinion," said East Lansing attorney Jeffrey Hank, who represented the Chronicle in the lawsuit. "We believe we presented clear evidence of an Open Meetings Act violation. We basically hope at the end of the day to get a rule clearing up the Open Meetings Act and what is allowed (for a closed session)."

 

Hank said he thinks the city of Ann Arbor is applying the "attorney-client privilege" rule too broadly and undermining the Open Meetings Act.

 

While preparing the motions in the case, Ann Arbor officials became aware that Hank was looking to open a medical marijuana dispensary in East Lansing but had been stymied by a moratorium there. Hank, a known medical marijuana advocate, doesn't deny that.

 

He declined to comment on Thursday when asked if he had any business interest in opening a medical marijuana dispensary in Ann Arbor.

 

Though Hank and the Chronicle filed suit against Ann Arbor shortly after the city passed the moratorium in August, they maintain the lawsuit isn't about medical marijuana — the case is "100 percent" about the Open Meetings Act, Hank said.

 

Askins said the Chronicle established a working relationship with Hank around the first week of July, and so the timeline refutes any speculation that Hank's involvement with the case was based on anything other than the merits of the Open Meetings Act lawsuit.

 

He said Hank was suggested by the Michigan Bar Association referral service after the Chronicle inquired about attorneys specializing in Open Meetings Act and Freedom of Information Act issues. He said the referral predates the July 19 closed session.

 

"I had no idea that Jeffrey was also interested in medical marijuana issues when we obtained the referral," Askins wrote in an e-mail to AnnArbor.com. "We focused on the possibility of retaining him to handle future OMA/FOIA issues — the city of Ann Arbor seems to generate a lot of these type of issues."

 

At Wednesday's hearing, city staff attorney Abigail Elias represented the city in court. At the close of the one-hour hearing, the judge ruled in favor of the city and dismissed the case.

 

Hank said it's still uncertain exactly what happened in the July 19 closed session, but he said certain council members have confided in the Chronicle that policy discussions and decisions were made. The Chronicle is not sharing names of those council members.

 

The Chronicle also claims statements made by council members at the Aug. 5 meeting, when the moratorium was decided, suggest directives or decision-making happened in private.

 

Council Member Stephen Rapundalo, D-2nd Ward, stated publicly at that meeting in regard to the moratorium: "In fact, this was discussed at our last meeting, and a directive was given to the city attorney at that time to bring this forward to this meeting tonight, and I believe everyone was in the room when that was indicated."

 

Council Member Tony Derezinski, D-2nd Ward, can be seen on the archived meeting video nodding his head in agreement with Rapundalo.

 

Rapundalo later issued a public retraction on Sept. 7, claiming he misspoke and that his statement that any directive was given was a "misrepresentation" of what happened.

 

"He changed his story 100 percent," Hank said. "That's why we're fighting the case."

 

Ryan J. Stanton covers government and politics for AnnArbor.com. Reach him at ryanstanton@annarbor.com or 734-623-2529.

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