Opinion: Ann Arbor ordinance misrepresents city charter

Members of city councils in Michigan are elected to office. So voters can toss an incumbent who stands for re-election, if they’re dissatisfied with the representation they’re getting from the councilmember. Or for any reason they like.

Last year, Ann Arbor’s city council enacted a new local ordinance that describes the procedure to be used by the council itself, between elections, for throwing one of its members off the elected body.

How does the council even have a right to get rid of a member—who was put at the council table by voters? It’s a power provided to the city council by the city charter.

But the language of the ordinance on removing a councilmember misrepresents the charter—in a way that should be addressed. (It’s probably within the bailiwick of the council’s rules committee or the administration committee to address it. Either committee could recommend to the whole council a correction of the ordinance language.)

The charter does not, as claimed by the preamble to the ordinance, give the council a general power to regulate the actions of its members.

First, what exactly does the ordinance claim? From the Internal Regulation Ordinance:

1:111 – Intent and purpose.
Pursuant to Section 4.4 of the Ann Arbor City Charter, the Council has the general power to regulate the actions of its Councilmembers through its own rules. In addition, Section 12.12(a) of the Charter also provides the Council with the general authority to remove a Councilmember, but requires an ordinance for bringing about such a removal.

Section 4.4 of the city charter is easy enough to look up. The first hint that Section 4.4 might not assign a general power to the council to regulate actions of councilmembers is the section’s title: “Meetings of the Council.”

But maybe the drafters of the charter casually included some topics in Section 4.4 that are not specifically related to council meetings? No, it sure doesn’t look that way.

The ordinance parrots a phrase from Section 4.4(e) of the charter.  The charter reads (emphasis added):

Section 4.4(e) The Council shall determine its own rules and order of business. It shall keep a journal, in the English language, of its proceedings. The journal shall be signed by the Clerk after approval by the Council.

Did the author of the ordinance stop reading after the word “rules”? And not read anything that came before that subsection?  Like the section title, “Meetings of the Council”?

It’s not possible to construct out of Section 4.4(e) anything more than the council’s power to regulate the actions of a councilmember at a council meeting. In Section 4.4(e), the phrase “its own rules” indisputably refers to the rules for conducting a meeting.  You have to raise your hand and be recognized before speaking and that sort of thing.

It’s incomprehensible that anyone might try to interpret Section 4.4(e) as equipping the city council with a general power to regulate actions of its members outside of meetings.

Is there anything else in Section 4.4 that touches on the topic of regulating the actions of councilmembers by the council? Yes. Section 4.4(h) and Section 4.4(i).

Section 4.4(h) says the council can encourage attendance at its meetings by imposing discipline, through an ordinance or a rule, for non-attendance:

Section 4.4 (h) The Council may compel the attendance of its members and other officers of the City at its meetings, may take disciplinary action for non-attendance as prescribed by ordinance or by Council rules, and may prescribe, by ordinance, the punishment for any misbehavior or the contemptuous or disorderly conduct of any member or any person present at any meeting of the Council.

However, the specific ability to make a rule or ordinance describing punishment for failure to attend meetings cannot be interpreted as a general power to regulate the actions of councilmembers.

Section 4.4(i) gives councilmembers the right to settle the question of financial conflicts of interest by determining whether a colleague can participate in a vote at a meeting:

Section 4.4 (i) A member of the Council shall not vote on a question in which the member has a financial interest, other than the general public interest, or on any question involving the member’s own conduct. If a question is raised under this section at any Council meeting concerning the eligibility of a member of the Council to vote on any matter, such question shall be finally determined by the concurring vote of at least six members of the Council, not including such member.

The specific right to determine the eligibility of another councilmember to participate in a vote at a meeting cannot be interpreted as a general power of the council to regulate the actions of a councilmember.

In sum, there’s nothing in Section 4.4 of the city charter that can be remotely interpreted as a general power of the council to regulate actions of councilmembers. The powers described in Section 4.4 are not general in nature, because they are explicitly confined to council meetings. That’s not surprising, given the title of the section, which is worth repeating: “Meetings of the Council.”

Who at the city of Ann Arbor believes that Section 4.4 of the city charter gives the city council “the general power to regulate the actions of its Councilmembers through its own rules”?

This belief appears to have led, over the last year or so, to the creation of several additional council rules meant to regulate the actions of councilmembers outside of meetings. For example, councilmembers are now compelled by a council rule to forward to the city attorney certain communications they receive.

Does the micromanaging of councilmember actions outside of meetings—through various rules—depend crucially on a power derived from Section 4.4 of the city charter? If it does, then it might be worth reviewing all council rules related to conduct outside of meetings.

It’s certainly interesting to ask whether there is any law or principle that gives the city council a general power to regulate the actions of its members—who are all elected officials and who answer to voters.

But that’s not the question that needs immediate attention.

The question that should be answered now is: On a plain reading, does Section 4.4 of the city charter provide a general power to the city council to regulate the actions of councilmembers? The answer is clearly: No.

That means the language of the Internal Regulation Ordinance should be corrected, so that it doesn’t misrepresent Section 4.4 of the city charter.