Elizabeth Nelson's City Council Blog

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I write a City Council newsletter with my summary of agenda items coming before City Council. Sign up to receive it first via email, or read it here later on this blog.

Illiberal Democracy

Last month, CM Hayner posted a quotation from a novel by Hunter S. Thompson (Fear and Loathing in Las Vegas) on social media, which included a homophobic slur. In response, three members of the Council Administrative Committee recommended removing CM Hayner from all his appointments to boards and commissions. This proposal was both unprecedented and procedurally rushed. I wrote about it here:

https://www.a2elnel.com/post/city-council-newsletter-apr-17-2021


I ultimately voted in favor of that resolution because in our discussion of the measure, Council Member Radina (former president of the Jim Toy Center) insisted that any delay or further process was a statement of rejection and hostility to the LGBTQ community, generally. I wrote explanation of my vote here:

https://www.a2elnel.com/post/statement-on-removal-of-cm-hayner-from-appointments


That Council vote is now used as the basis of a recall petition in Ward 1.

https://www.mlive.com/news/ann-arbor/2021/04/jeff-hayner-faces-recall-from-ann-arbor-city-council-for-homophobic-slur.html


An emboldened majority of Council now attempts to flex even more power, based on a rule they created and approved at our most recent meeting. This week, three members of the Council Administration committee urge an elected official to resign from all of his responsibilities based on their assessment of “conduct unbecoming of a Council Member.” A resignation would be an opportunity for the majority of Council to make an appointment - ahead of 2022 elections - effectively substituting their own judgement for the judgement of Ward 1 residents who vote.


BACKGROUND

When a new Council was seated last year, Mayor Taylor and Council Member Grand quietly eliminated the Council Rules Committee by merging it with the Council Administration Committee. Mayor Taylor was the chair of the Rules Committee when it existed and he also serves as the chair of the Administration Committee. Apart from the Mayor, I am the only current member of Council who previously served on the Rules Committee. In this ‘merging’ of Rules/Admin, eight Council appointments were reduced to five. In this way, power was concentrated among a smaller number of people. (I was not re-appointed.)


The current Council Administration committee (now responsible for Rules) includes five members: the Mayor, two Council Members who previously served on the Admin committee (Grand, Griswold) and two council members with no experience on either (Eyer, Ramlawi). It is notable that the person with the least experience - on either committee or on Council generally - is drafting and spearheading the most aggressive and predatory changes to our rules.


RULES AS TOOLS

Since eliminating the Rules committee, Council has seen many new Rule proposals rushed through the Administration Committee and approved by a new majority. New Rules - and related controversies around governance - have now appeared on seven meeting agendas (including this one). In just the last five months, a new majority on Council:

  • Opposed the preparation of a public legal memo on First Amendment rights in the context Council Rules, claiming that the public release of this information would cause a ‘chilling effect’ (1/19/21)

  • Approved Rules that included vaguely defined violations subject to reprimand, as well as a ‘redress of grievances’ in response to speech made in any public venue. (2/1/21)

  • Opposed a postponement of a vote on the Rules, even after it was known that the local ACLU had concerns about how proposed regulation of speech might violate First Amendment rights. (2/16/21)

  • Opposed the public release of legal memos on First Amendment rights in the context of Council Rules (3/1/21) before agreeing to the preparation of a different legal memo (the proposal rejected six weeks earlier, 1/19/21)

  • Opposed the recommendation of the City Attorney to receive legal advice before removing a Council Member from all appointments. (4/19/21)

  • Approved Rules that included yet more vaguely defined violations subject to reprimand, including “conduct that is unbecoming of a Council Member.” (5/3/21)

In their rush to pass new “rules,” a majority of Council obstructed calls for transparency and dismissed concerns expressed by the local ACLU. In their rush to target a colleague, a majority of Council rejected the City Attorney’s recommendation to delay action for one meeting in order to receive legal advice.


Most recently, a majority of Council approved rules that dramatically expand the rights of Council to marginalize and punish a duly elected colleague. Vaguely phrased rules (“conduct that is unbecoming of a Council Member”) are open to interpretation by whoever has the power to use them. This is by design: it creates the maximum opportunity for a majority of Council to target an individual member, at the absolute discretion of the Mayor.


MAYORAL DISCRETION: 2019

From November 2018 to November 2020, discussion of Council Rules was fairly limited. In the two years I served on it, the Rules Committee was permitted to consider very few issues: the timeline for sending questions to staff, practical enforcement of rules that already existed (i.e. Council speaking times), and potential response to the revelation that a Council Member was arrested and convicted of a crime and concealed it for three months.


Of those issues, only one - the timeline for sending questions to staff - actually made it out of the Rules committee for a vote at Council. This history is most relevant to current debate regarding internal complaints and reprimands. In 2019, the Mayor blocked any formal Council action in response to the criminal conviction of a Council Member.

https://www.mlive.com/news/ann-arbor/2019/03/ann-arbor-city-council-member-drove-with-twice-the-legal-blood-alcohol-limit.html


Without the Mayor’s consent to any formal Council action, it could not happen. Informally, it took five weeks to persuade that Council member to voluntarily step down from a single appointment as liaison to the Independent Community Police Oversight Commission (ICPOC).


At the discretion of the mayor, the same Council Member continued to serve in another appointed position (Planning Commission) for fourteen months after a majority of Council voted against his re-appointment. A current colleague’s explanation at the time:


If [a different Council Member] wanted to appoint himself to the Planning Commission, he should have won the mayoral race


MAYORAL DISCRETION: NOW

For the second time in as many months, our Council agenda includes a resolution targeting CM Hayner for offensive words he communicated outside of our Council meetings. In May - against a Council Member he dislikes - the Mayor led formal Council action at the first possible public meeting, removing CM Hayner from seven appointments.


In the same time frame, the Mayor and a majority of Council have raised no concerns about the Council member who:

The Mayor exercises significant discretion in defining what does or does not warrant Council action.


RULES AS WEAPONS

In agenda item DC-6 on our June 7, 2021 agenda, three members of the Council Administrative committee (CM Grand, CM Eyer, Mayor Taylor) sponsor a resolution asking that one of the elected representatives from Ward 1 (CM Hayner) resign from office. The resolution explains that CM Hayner is guilty of actions that are “unbecoming of a council member.”

https://a2gov.legistar.com/LegislationDetail.aspx?ID=4971949&GUID=27CAD262-73C7-4BAE-8D19-5A4E082C3442


The action that is “unbecoming of a Council Member” was a phone call between CM Hayner and a reporter, a conversation covering the topic of offensive words in cultural history. In that phone call, Council Member Hayner referred to a John Lennon song from 1973, the title of which includes a racial slur. In relating the title of the song, Hayner said all the phonetic sounds of the words to the reporter, without euphemism.


I responded and denounced the use of this word in my last newsletter:

There are some words so wildly offensive that context is unhelpful in diffusing their power to harm. In identifying those words (and measuring the harm of them), our conversation should be centered on the perspective of those who are hurt.

https://www.a2elnel.com/post/city-council-newsletter-may-15-2021


CONDUCT UNBECOMING

A new majority of City Council added this particular phrase/description (“unbecoming of a Council Member”) to Council Rules four weeks ago (May 3) along with seven other equally vague “Behavioral Norms.” This is their first opportunity to use the new rule, the very first Council meeting since a majority of the body approved it.


Moving forward, we can expect these rules to be applied in a predictable way: the Mayor will exercise discretion in determining “conduct that is unbecoming” and a majority of Council will decide where and how any individual Council Member is allowed to serve (or whether they should be permitted to serve) in their elected position and appointments. One member of the Council Administrative Committee believes that Council is empowered to act against a colleague "for really any reason we wish.”

https://www.mlive.com/news/ann-arbor/2021/03/toxic-political-tornado-debate-over-ann-arbor-council-rules-continues.html


VOTERS NOT POLITICIANS

One of my colleagues insisted last month that it “should be easy” for a majority of Council to simply remove an elected official from his appointed duties. A resident reached out to me recently and went further, proposing that when elected officials engage in unacceptable speech, we should "exclude" them from the usual partnering and collaboration that happens in government. This is a remarkable perspective at this particular moment in history.


This week, Republican leaders in Texas were close to approving new rules that would make it easier to invalidate the results of elections. New proposals would lower the standard for proving voter fraud and - where voter fraud can be proven by that lower standard - empower judges to overturn elections. Progressive Democrats across the country have raised the alarm: partisan interests are setting the stage to target political enemies and invalidate election results they do not like.

https://www.houstonchronicle.com/politics/texas/article/Biden-denounces-Texas-voting-bill-now-amended-to-16212715.php


It should not be “easy” for a majority of elected officials to implement policies to ‘exclude’ other elected officials from positions of power. That’s not how our liberal democracy works.


ILLIBERAL DEMOCRACY

In the last twenty years, political scientists have coined a term to describe governments where democratic elections assign positions of power but those in positions of power reject the liberal norms that should limit their power: illiberal democracy.


In an illiberal democracy, a temporary electoral majority uses its grip on power to subvert the main institutions of the state and civil society: the independent media; the judiciary; the police. All the while, a facade of electoral democracy is maintained, with multi-party elections, a parliament that debates, and some toleration of dissent. But the essence of democratic rule is regularly violated.

https://masspeaceaction.org/moving-towards-illiberal-democracy/


ACCOUNTABILITY TO VOTERS

Our local democracy creates opportunities for the voting public to intervene when an elected official’s conduct is offensive or unacceptable. That process is happening now: a recall petition being circulated in Ward 1. Below is an explanation I wrote, in response to the resident who asked for an internal process to “exclude” CM Hayner from government:


The petition being circulated to recall CM Hayner was approved by the standard of whether or not it was factually true. The residents of Ward 1 will assess whether his use of words is evidence of him being unfit for service on Council, they will have the opportunity to judge and reject him. CM Hayner has lived in Ann Arbor for several decades and many people in town have known him for a very long time, long enough to assess whether he is a homophobe or a racist. He is going to have to defend his behavior to people who don’t know him well -- his use of these words (quite appropriately) reflects a great deal of ignorance, he will have to convince people that they don’t reflect malice, they are not disqualifying. CM Hayner is the only lower-income member of our local government and I expect that plenty of money will fund the recall election campaign - this is likely to turn out as you would like.


Since writing that email, I understand that proponents of the recall have set a goal of raising $25,000 to unseat CM Hayner. Arguably, that amount of money is the new price of an elected position on City Council in Ann Arbor. Last August, five Council candidates spent, on average, $27,000 to win each election (one candidate raised and spent over $40,000). In local wards that are small enough to easily walk and bike in their entirety, any potential candidate for Council must now contemplate how to compete against tens of thousands of dollars in hired staff, mailers, and coordinated PAC campaigns. CM Hayner would have faced this at the end of his term in 2022, but now confronts it sooner.


A new majority on Council works to make our local government less accessible, less transparent, and less accountable to voters. I will not support any effort to concentrate power even further without the benefit of elections.