Ann Arbor Chronicle sues city over alleged 'secret discussions' regarding medical marijuana policy
(This story has been updated with additional comments from the city attorney.)
The Ann Arbor Chronicle is suing the city of Ann Arbor, claiming City Council members violated the state's Open Meetings Act by engaging in "secret discussions" during which they formulated plans for a moratorium on medical marijuana dispensaries.
In the lawsuit filed in Washtenaw County Circuit Court on Friday, the Chronicle says council members held a closed session meeting on July 19 and broke the law by discussing and possibly giving directive to the city attorney regarding medical marijuana policy.
The city of Ann Arbor is defending itself in a new lawsuit that alleges City Council members held illegal closed-door discussions about regulating medical marijuana dispensaries in the city.
The Associated Press
"Given the sensitive political nature of medical marijuana and the citizenry's newly regained rights to use marijuana medically without interference from an oppressive government," the Chronicle's lawsuit states, "it is unlawful and completely unacceptable that the Ann Arbor City Council formulated medical marijuana policy in secret to the detriment of the public's right to know and to the rights of its citizens."
The Chronicle is an online news publication owned by Dave Askins and Mary Morgan, a husband-and-wife duo. They regularly attend and write about local government meetings in Ann Arbor.
They claim in their lawsuit that city officials are "cloaking" their "secret decision-making" by saying the discussions were attorney-client privileged.
The case has been assigned to Judge Melinda Morris. The Chronicle is being represented by attorney Jeffrey Hank of East Lansing.
Following the July 19 meeting where council members allegedly discussed medical marijuana policy behind closed doors, the City Council voted during an open session meeting on Aug. 5 to place a four-month moratorium on new dispensaries. City officials since have crafted a new zoning ordinance for dispensaries that will be the subject of a public hearing and possible action at the Planning Commission's meeting Tuesday night.
The Chronicle claims various council members made statements publicly at the Aug. 5 council meeting that suggest discussions, directives or decision-making about medical marijuana policy happened behind closed doors at the council's July 19 meeting.
Council Member Margie Teall, D-4th Ward, reportedly stated: "We had talked about it. I had expressed interest in looking at this issue, but (she didn't think it would be coming this soon)."
Council Member Carsten Hohnke, D-5th Ward, also reportedly stated he was unaware the moratorium was coming before council for consideration.
In response to both Teall and Hohnke, Council Member Stephen Rapundalo, D-2nd Ward, then reportedly stated 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."
Rapundalo issued a public retraction of his statement at the council's Sept. 7 meeting, claiming he misspoke when he said any discussion took place at the July 19 closed session.
"If there was a discussion, it was actually one-sided," he reportedly stated. "It was done by the city attorney as part of the focus of that closed session, which was concerning legal advice."
He also said his statement that "directive" was given to the city attorney was a "misrepresentation" of what actually happened. He said there was one council member at the closed session who indicated an interest in bringing the matter forward quickly and worked with City Attorney Stephen Postema on the moratorium.
Postema backed up Rapundalo's story. He said he didn't receive any direction from council at the closed session meeting, but rather he talked by phone with Council Member Marcia Higgins, D-4th Ward, later in the week and she directed him to craft a resolution.
Postema said he has not yet reviewed the specific claims in the Chronicle's lawsuit, but he's certain that no violation of the Open Meetings Act occurred. "I always provide legal advice to the council in closed sessions," he said. "It's specifically permitted under the Open Meetings Act, and Rapundalo is right — the discussions are one-way. There's nothing unusual or secretive. Council members certainly can ask me questions about the legal advice, but it doesn't get into policy."
Even if there was a private directive to prepare a resolution, Postema said he's not sure that action would violate the law. He said the Open Meetings Act prohibits making binding decisions behind closed doors. Being told privately by a council member, either by phone or in person, to draft a resolution so it can come forward at an open meeting for public discussion "happens all the time," Postema said, and doesn't conflict with the law's intent.
But the Chronicle claims in its lawsuit that "other council members will testify to the fact that policy discussions and decisions were made" behind closed doors on July 19, and the discussions "strayed outside the stated purpose for the closed session."
Rapundalo and Teall could not be reached for comment today. Hohnke declined to comment on the lawsuit when contacted by AnnArbor.com today.
As a result of the city's actions, the Chronicle says, "the public was harmed by failing to have adequate notice and an opportunity to participate in the democratic process regarding the rapidly evolving legal landscape of the Michigan Medical Marijuana Act."
The Chronicle also claims specifically that Ann Arbor citizens' constitutional rights were "unduly damaged" and the Chronicle itself was damaged by "an inability to effectively engage in the news business and to timely disseminate information to the public."
The lawsuit concludes by saying city officials clearly engaged in "secret discussions" and attempts to deny they happened may rise to the level of fraud or criminal misconduct.
Ryan J. Stanton covers government and politics for AnnArbor.com. Reach him at ryanstanton@annarbor.com or 734-623-2529.
Comments
Eric L. VanDussen
Thu, Sep 30, 2010 : 12:25 p.m.
September 30, 2010 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
Eric L. VanDussen
Thu, Sep 30, 2010 : 12:10 p.m.
From Laurie Foondle - FOIA Coordinator - City of Ann Arbor 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 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)
Eric L. VanDussen
Fri, Sep 24, 2010 : 5:33 p.m.
My FOIA request was emailed to the city before I cut and pasted its text here. The majority of what I'm requesting will have to be produced during discovery in the OMA lawsuit. The city may as well start compiling it right now.
Eric L. VanDussen
Fri, Sep 24, 2010 : 2:11 p.m.
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
Steve Pepple
Tue, Sep 21, 2010 : 8:06 a.m.
A comment was removed because it contained a personal attack against another commenter.
rusty shackelford
Tue, Sep 21, 2010 : 7:52 a.m.
Everyone involved here just needs to mellow out. If only there were some way to do that...
Ryan J. Stanton
Tue, Sep 21, 2010 : 5:29 a.m.
I asked Dave Askins at last night's council meeting to disclose the identities of council members who allegedly will testify to the fact that policy discussions and decisions were made behind closed doors on July 19. He said that information will come out in depositions.
gamebuster
Mon, Sep 20, 2010 : 11:33 p.m.
Ann Arbor Chronicle did a good job. Please search "annarborchronicle" + "Urban County", you will surely find some amazing reports about the "Urban County" meetings. That's only Mary Morgan who has regularly attended the meetings alone. Read all the articles, you might feel very??? to know that how AA joined "Urban County" last year, then AA housing fund & decision making power both transfered. How "Gateway low-income housing" got messed up in Ypsilanti, how they flung the fund there again to extend the date, avoiding HUD chases the fund back. It seems more fund gained, you need to check the details to see how much transfered and lost, but also have a look at the administration cost taken away by the Office of Community Development. Two federal fund adds up to 2.6 million, about $600,000 administration cost was taken, let alone other costs from other funds. Also have a closer look at the decision process. Staff makes the proposal changes then urged to vote by saying that deadline for application is coming. Mary Morgan from annarborchronicle did a good job, only she attended all those "Urban County" meetings. If you care this city, you must read through all those articles to see how funds got re-allocated.....till where can I see our people housed???
gamebuster
Mon, Sep 20, 2010 : 11:32 p.m.
Ann Arbor Chronicle did a good job. Please search "annarborchronicle" + "Urban County", you will surely find some amazing reports about the "Urban County" meetings. That's only Mary Morgan who has regularly attended the meetings alone. Read all the articles, you might feel very??? to know that how AA joined "Urban County" last year, then AA housing fund & decision making power both transfered. How "Gateway low-income housing" got messed up in Ypsilanti, how they flung the fund there again to extend the date, avoiding HUD chases the fund back. It seems more fund gained, you need to check the details to see how much transfered and lost, but also have a look at the administration cost taken away by the Office of Community Development. Two federal fund adds up to 2.6 million, about $600,000 administration cost was taken, let alone other costs from other funds. Also have a closer look at the decision process. Staff makes the proposal changes then urged to vote by saying that deadline for application is coming. Mary Morgan from annarborchronicle did a good job, only she attended all those "Urban County" meetings. If you care this city, you must read through all those articles to see how funds got re-allocated.....till where can I see our people housed???
Speechless
Mon, Sep 20, 2010 : 10:36 p.m.
Of all new issues for council to get stupid over, they choose Medical Mary? Due to apparent political paranoia in this matter on the part of one or more council members, a molehill may soon become a small mountain. Why is it hard to handle this calmly and rationally, without mindless confidentiality? Some council members, it seems, could benefit from a little group relaxation therapy. This might entail a casual session of creative, freeform painting on a large outdoor rock in honor of George Washington, our nation's founding hemp farmer, at a small but pleasant street-side park on Washtenaw Ave. If the standing around should begin to feel tiring, bring along a couch or two.
lefty48197
Mon, Sep 20, 2010 : 10:04 p.m.
I'm sure Tom Joad will join me in demanding that Ann Arbor shut down many of it's pharmacies, because everybody knows that some unscrupulous doctors are writing prescriptions for oxycontin, vicodin, and valium. Why does the city of Ann Arbor continue to mock us by allowing that to continue right under our noses???
Tom Joad
Mon, Sep 20, 2010 : 9:42 p.m.
What is the rationale for having a dispensary in a community when the law says quite clearly that a caregiver (grower) can only provide medical marijuana to five patients + himself is he has a card? So are these clearing houses for each caregiver to serve his or her 5 patients, and what does the dispensary earn for being the middle man, so to speak? It seems if a patient is genuinely interested in acquiring their medicine at the best price they would bypass the dispensary entirely. You certainly can't smoke it on the premises and you can't grow it there. Obviously it's a money-grab by enterprising businessmen who want to get in on the profits of medical marijuana. You can plainly see that the marijuana law in Michigan is in serious need of clarification and well-considered thought because if the California-type dispensary is instituted here you will have a revolving door of people getting their medicine at ruinously high prices. I've sat outside a dispensary in Oakland, CA and categorically the bulk of the patient were 20-something young men and women leaving with their tell-tale brown lunch bags holding their medicine, each with a big smile on their face like kids walking out of a candy store. We all know people who have scammed a script from a unscrupulous doc...let's not rub in our faces with a pot superstore
Ed
Mon, Sep 20, 2010 : 9:25 p.m.
haha, it doesn't surprise me, but the shady nature of the city council shows that they KNOW they have a lost cause here. i can't believe that a city council would be that scared, afraid, cowardly not to talk to it's public about important issues like this. regarding it's highly potent, political nature, it would seem that they broke alot of oaths to the people of ann arbor and they should be fired. but i'm sure this isn't the only place that things like this go down, unfortunately. great job Chronicle!
Tom Joad
Mon, Sep 20, 2010 : 8:49 p.m.
Michigan's medical marijuana statute in fact does not provide for dispensaries like those proliferating in California.
LiberalNIMBY
Mon, Sep 20, 2010 : 8:04 p.m.
Reminds me of a line from "Wall-E": "Directive?" "Classified!" So, attorneys out there -- is there any precedent to this precise type of OMA-violation lawsuit? I always thought there had to be some kind of tangible "harm" in order to seek a "remedy." Or perhaps the suit just seeks the Council to do a big do-over? Either way, I have tremendous respect for the Chronicle as well as annarbor.com.
Mick52
Mon, Sep 20, 2010 : 7:39 p.m.
Conspiracy theory? Impeding city business? Nonsense. The Chronicle has every right to exercise the law per FOIA. What I want is more evidence: "But the Chronicle claims in its lawsuit that other council members will testify to the fact that policy discussions and decisions were made" behind closed doors on July 19..." Who? Why aren't these council members names published? Wouldn't naming them put some more meat in this story? I frown when the press substitutes the word "secret" for confidential or closed door. Secret sounds dirty I guess, it's juicier. So why keep the names of these council members secret? I often wonder why or if govt units really need to hold any closed door sessions. Why shouldn't all govt business be open to the public, especially in this age of "transparency" a term I am tired of hearing. During the contract negotiations between the A2FD and the city early in '10 to avoid layoffs until June, we heard the same thing: negotiations are continuing but we have all agreed to be non-transparent. "The public's right to know." Another inaccurate statement. If there is a right to know beyond the standards of FOIA, please point out which clause of the constitution states such. Even FOIA has exceptions, so, no, you have no right to know. The press likes to use it, especially when they can't get info. There is freedom of press, which means the govt can't stop or impeded the press, but there is no freedom of getting any information you want anytime you want it. You just have the right to print and spew about what you do know. That kind of stuck in my craw a little. I would like to know what is being talked about. That might give us some more clarity in what each side is proposing. If all govt sessions were open, wouldn't that be the ultimate in open meetings and limit the possibility of mis-conduct by amateur officials?
L'chaim
Mon, Sep 20, 2010 : 7:29 p.m.
Smoke 'em while you got 'em!;)
truthspeak
Mon, Sep 20, 2010 : 7:19 p.m.
@Erik Why would the chronicle waste their money? For attention, for publicity, for entertainment. We just had another frivolous lawsuit thrown out of court. Remember the people suing because a new parking garage would cause more pollution because cars would drive towards it. (absolutly a waste of time and ridiculous) The chronicle's lawsuit and the parking garage lawsuit are brought forth in order to make a statement or a point, not because anything illegal has happened. The problem I have with it is that it waste the taxpayers' time and money and impedes my government from serving us, the residents. Also, keep in mind they are innocent until proven guilty. Just because the chronicle brought forth a lawsuit that does not mean there is any merit to it. We just got through an election where Lesko and her A2poltico blog was stretching the truth and outright lying at times. Just because a blog says something that does not make it true.
CoolDexter
Mon, Sep 20, 2010 : 6:46 p.m.
I concur... hurray for the Chronicle. Thank goodness they are here - with journalism budgets (and publications) disappearing, we need local watchdogs more than ever now. What is happening with this issue in Ann Arbor is critical, and not just in A2. Milan, Ypsi, Dexter and other nearby towns are closely watching how Ann Arbor handles this. In Dexter, for example, the village council has already passed a 120 day moratorium similar to A2, and there's definitely a sense that they are waiting for Ann Arbor's reaction before proceeding. This apparent lack of transparency in Ann Arbor makes me think something similar might be going on here in Dexter. Very few people seemed to know this until last week, but a dispensary is *already* open for business in Dexter's commercial business district and has apparently been in operation since early August. Called the Dexter Alternative Care Clinic (DACC), they received a cease-and-desist letter from the village right after the council put their moratorium in place late last month. Obviously, one wonders if this is mere legislative coincidence? Interestingly, the Dexter Leader has covered local medical marijuana issues multiple times since August, with many quotes from council members and even an online chat to solicit public opinion (asking, somewhat ominously I'd say, "Do you want to see a medical marijuana dispensary on your Main Street?"). And yet, *none* of this coverage mentioned the already opened DACC dispensary, and the village's cease-and-desist letter. Last week, the Leader finally reported this story after the dispensary's lawyer responded to the village's cease-and-desist action (the lawyer says they are remaining open for business on the grounds that DACC was in existence before the moratorium). I don't know what's going on, but I feel like I'm not getting the full story - both in Ann Arbor and Dexter. Come to think of it, I haven't seen anything here on A2.com about Dexter's new dispensary either. So maybe we need to convince the Chronicle to open a newsdesk in Dexter too.
Concerned Citizen
Mon, Sep 20, 2010 : 6:41 p.m.
@truthspeak Why would the ann arbor chronicle waste their money if they did not think they had a case. Politicians need to uphold the law and be held accountable if they don't!
truthspeak
Mon, Sep 20, 2010 : 6:09 p.m.
I am so sick of conspiracy theories. Can we, for once, have council consider an issue without the conspiracy theories being tossed around? I am quite tired of a small group of people in this town complaining about council and their decisions even before the decisions are made. This is just another frivolous lawsuit wasting the taxpayers time and money so that an online newspaper can create drama to increase their page hits. (I am referring to the annarbor chronicle). The annarborchronicle is not serving the residents; theyre just impeding city business for no actual purpose. It is sad and infuriating.
David Cahill
Mon, Sep 20, 2010 : 5:52 p.m.
AnnArbor.com, could you please post a link to the Chronicle's complaint? It's not clear from the coverage what the Chronicle wants the court to do.
Cash
Mon, Sep 20, 2010 : 5:22 p.m.
Hooray for the Ann Arbor Chronicle!! It's time we had local media representation not satisfied with being spoon fed the news! I applaud them and am heading there right now!
aes
Mon, Sep 20, 2010 : 5 p.m.
Yay! A2Chronicle--way to go!
donderop
Mon, Sep 20, 2010 : 4:19 p.m.
Rapundalo stepped right in it, didn't he!