by P.D. Lesko

A PENDING LAWSUIT against Ann Arbor for its Footing Drain Disconnect program begun in 2001 has the potential to cost taxpayers tens if not hundreds of millions in damages. Ann Arbor’s City Attorney once predicted the suit would be thrown out by a federal judge. But instead the case was sent back to Washtenaw County’s Circuit Court. Plaintiffs’ attorneys have begun to depose city staff as well as former city staff and contractors who may have information related to the FDD program.

The date is fast approaching by which Judge Timothy P. Connors is expected to schedule a jury trial. Irv Mermelstein, an attorney for the plaintiffs, says he expects the case to go to trial. Council members say City Attorney Postema is confident the case will be dismissed.

At their May 3 meeting, city staff asked that Council members approve a 19-month $587,000 consulting contract with OHM Advisors. The same contractor conducted a $1.3 million survey of FDD homeowners in 2013.

In the witness list submitted to Circuit Court Judge Timothy P. Connors by City Attorney Stephen Postema, OHM Advisors’s employees Robert S. Czachorski, PE and Greg Marker, PE are listed as expert witnesses for the defense.

The Ann Arbor Independent asked City Council members to comment on whether they knew that OHM Advisors’s employees were slated to be expert witnesses for the defense in the FDD lawsuit against the city.

Council members Jack Eaton (D-Ward 4) and Jane Lumm (I-Ward 2) responded.

Both said city staff had not told them that Council was being asked to give a $587,000 contract to a company whose employees were listed as expert witnesses for City Attorney Postema’s FDD case defense.

In addition, OHM Advisors was the only company to respond to the February 2015 RFP.

When questioned via email, city staff responded in writing to Council: “The nature of the work being requested is such that it almost requires a firm local to southeast Michigan to perform. As such, there is a very limited pool of candidates that are capable of performing such work. As such, it is anticipated that re-issuing the RFP would likely not change the results. In addition, reissuing the RFP would result in delaying the start of the project until at least August of 2015.”

Council members are not the only ones concerned about the contract with OHM Advisors. Frank Burdick was appointed by Council to the SSWWE/FDD Citizens Advisory Committee charged with examining various aspects of the FDD program through a survey of residents in whose homes FDDs had been done. Burdick alleges he was tossed off the committee as a result of his insistent and sharp questioning of consultant Charlie Fleetham’s methods and assumptions. Fleetham’s consulting firm, Project Innovations, Inc., was hired to facilitate the citizen advisory committee.

AAPD officers were dispatched to at least one of the SSWWE/FDD Citizens Advisory Committee meetings at which Burdick was present; he alleges police intimidation. Council member Jack Eaton was threatened with ejection from a SSWWE/FDD Citizens Advisory Committee public meeting he attended for whispering to Burdick (The two attended a meeting together after Burdick had been tossed off the advisory committee.).

Frank Burdick believes the OHM contract is a mistake because, he writes in an email, “OHM has a past history of belittling the problem installations or discrediting the dissatisfied homeowners. OHM has a vested interest in making the FDD program appear successful regardless of the imposition and anxiety foisted on the taxpayers.”

Council member Eaton, as well Council members Kailasapathy (D-Ward 1), Anglin (D-Ward 5) and Lumm voted against awarding the $587,000 contract to OHM Advisors.

Eaton said: “We’ve dumped a lot of money into the FDD program, and it has been a cause of some level of discontent, especially out in my ward. I have heard so many complaints about this whole program. I know that some people have had a footing drain disconnect and are happy with it and have had no problems, but that’s not uniformly the experience.”