Updated: Ann Arbor’s City Seal Ordinance: Less than an hour of legal work (turns into 13 more hours when the city rechecks records)

[Note: A week after this piece was published, the City of Ann Arbor appears to have checked through the city attorney staff electronic time records again. Some additional time records, were found and provided on Dec. 12. The additional records show 13 hours of work that was done on the city seal ordinance before the item was placed on the city council agenda. The first additional entry is Nov. 8, 2018 and the last additional entry is June 8, 2018. The work shown in the additional records was done by staff attorney Matthew Rechtien.]

It’s possible to draw a conclusion about Rechtien’s work that is parallel to the one in the piece below about the 45 minutes of work done by staff attorney Abigail Elias: It appears that in his 13 hours of work Rechtien did not find the legal precedents cited by the ACLU in its letter to the city analyzing the seal ordinance as unconstitutional, or else that Rechtien drew conclusions about the precedents that were different from those of the ACLU.

On July 2, 2018, the Ann Arbor City Council gave final approval to a new ordinance regulating use of the city seal and flag. It was introduced for a first reading at the June 18 council meeting.

Based on the response from the city of Ann Arbor to a request under Michigan’s Freedom of Information Act, it appears that the legal research and drafting of the ordinance by city attorney staff required a total 45 minutes of work before it was placed on the city council’s agenda.

The city’s response to the request under FOIA shows 45 minutes of work done on the topic by assistant city attorney Abigail Elias on Nov. 24, 2017. The only other time log entry for work on the ordinance before its first reading is by Matthew Rechtien on June 16, 2018 (a Saturday), two days after the council’s agenda for June 18 was published. (Council agendas for Monday meetings are published on the preceding Thursday.) Rechtien’s 90 minutes of work is categorized as “review.” The work Elias did six months earlier is classified as “uncoded.”

Based on the new ordinance, the city sent a cease-and-desist letter in an attempt to force the removal of the city seal from a LocalWiki page—a kind of lighthearted take on the Burr Oak tree.

After the cease-and-desist letter was sent, the mayor of Ann Arbor used his discretion under the new ordinance to approve the use of the city seal for the LocalWiki page.

In a letter dated Nov. 1, 2018, the  American Civil Liberties Union told the city of Ann Arbor the ordinance was unconstitutional, because it amount to a prior restraint of free speech. The ACLU said the city attorney should disavow any attempt to enforce the ordinance and that the city council should repeal it.

The letter from the ACLU cites several federal cases bearing on the topic of government seals. It appears that either Elias did not find the precedents cited by the ACLU in her 45 minutes of work, or that Elias drew conclusions about the precedents that were different from those of the ACLU.

The city’s response to the FOIA request for time records also shows some work after the ordinance was passed, likely related to enforcement activity. From the time the city seal ordinance was passed up to now, the city attorney time logs show that work on on the city seal law by city legal staff (by Rechtien and Betsy Blake) has totaled 12 hours.

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