Ann Arbor City Attorney Shenanigans?

Asst. City Attorney Says Postema’s Office “Represents” Detroit City Employee

Ann Arbor Public Services Administrator Sue McCormick left in 2011 to head the Detroit Water and Sewerage Dept. In a March 2015 email regarding depositions in the Footing Drain Disconnect lawsuit, Asst. City Attorney Abigail Elias writes that the Ann Arbor City Attorney’s Office represents McCormick. Council members are once again left in the dark as the City Attorney neglects to inform them of pertinent details.

by P.D. Lesko

SUE MCCORMICK worked as Ann Arbor’s Public Services Administrator from 2001-2011. In Nov. 2011, she “retired” with a second public pension and took a job as the Director of the Detroit Water and Sewerage Dept. In a Mar. 2015 email sent by Asst. City Attorney Abigail Elias, and turned over in response to a Freedom of Information Act request, Elias writes: “Thank you for confirming the rescheduled date for Ms. McCormick. Yes this office is representing her.” “This office,” refers to Ann Arbor City Attorney Stephen Postema. Elias’s email was sent to City Attorney Stephen K. Postema and the attorneys of plaintiffs suing the city as a result of the 2001 Footing Drain Disconnect Program (FDD).

The City Attorney’s legal representation of Sue McCormick is not a unilateral decision permitted him by Ann Arbor’s Charter which stipulates the City Attorney’s client as City Council. Council may delegate other duties to the City Attorney, but such delegation requires a public discussion and a public vote.

An examination of Council records going back to the beginning of 2014, when the FDD lawsuit was filed, show no public hearing or public vote which would have empowered the City Attorney to represent Ms. McCormick.

The Ann Arbor Independent submitted Freedom of Information Act requests for records which outline the exact terms of Ms. McCormick’s legal representation and outline whether McCormick is expected to reimburse Ann Arbor taxpayers for the expense of the two city attorneys present at her several hour Mar. 15, 2015 deposition in the matter of the FDD litigation and any other prepping or legal work done on her behalf.

Critics suggest that because McCormick’s name appears on City Attorney Postema’s list of witnesses submitted to the Circuit Court as a part of his FDD litigation defense strategy, allegedly providing McCormick with legal representation paid for by Ann Arbor taxpayers could be construed as a effort to guarantee her favorable testimony.

One Ann Arbor City Council member pointed out that Sue McCormick has the ability to do substantive and significant harm to the City Attorney’s case in defense of the FDD program.

A Footing Drain Disconnect (FDD) is a plumbing and construction procedure. A homeowner’s footing drain, which wicks water away from a home’s foundation, is disconnected from the city’s stormwater sewer system. A sump crock is dug and a sump pump and/or back-up sump pump installed.

Those familiar with the history of the The FDD program suggest that it was begun in 2001 primarily as a way to avoid spending hundreds of millions of dollars to improve and upsize the city’s deteriorating stormwater and sanitary sewer systems.

Craig Hupy, the city’s Public Services Administrator—he took over from McCormick—said as much in his Mar. 2015 deposition related to the FDD litigation. Under questioning by the plaintiffs attorney’s, Hupy said that since 2007 Ann Arbor has upsized “thousands” of feet of the city’s “400-plus miles of publicly owned and maintained pipe.”

Homeowners in areas targeted for FDDs were disconnected from the stormwater sewer system. Meanwhile, downtown and other select development projects were allowed to connect to the city’s stormwater sewer system. In theory, the disconnections leave capacity for new development to use the system without overwhelming it.

In 2010, the city’s Planning Commissioners, including now Ward 2 Council member Kirk Westphal, recommended the following to City Council regarding the Zaragon 2 highrise development at 500 E. William St.: “The City Planning Commission, at its meeting of June 15, 2010, recommended approval of this request subject to addressing outstanding comments from the Systems Planning Unit and the Fire Marshal.  The petitioner has addressed these issues by 1) moving the proposed fire hydrant closer to the building’s Fire Department connection, as requested by the Fire Marshal; 2) agreeing to mitigate the development’s impacts to the sanitary sewer system by providing 24 footing drain disconnects upstream of the project….”

According to a 2013 survey of homeowners who’d allowed FDDs—as opposed to paying stiff fines—30 percent of those surveyed reported being dissatisfied with the outcome. “Almost 40 percent” of those residents surveyed reported “some or significant increase in anxiety,” about potential FDD problems. Those problems included sump pump malfunction, as well as water flooding from the sump pump hole.

In the comments made by those who completed the 2013 FDD Program survey, one stands out in light of the current FDD litigation and Sue McCormick’s involvement as the point person on the city’s FDD program from its beginning: “I begged not to have to do this and I feel that my personal rights were violated because I was forced into it. Now there is moisture around the sump pump to the extent that the tiles are loose, less storage space, worry about performance and maintenance, moisture outside perhaps? The garage floor area seems to have been affected, effort and time needed to investigate further and make repairs, financial loss for repairs and if our home is devalued, and emotional stress. I HATE what the city has done to my house and to my life.”

Critics argue that the city sacrificed the health and well being of city residents in targeted FDD disconnect areas so that downtown development—and the accompanying property tax capture for the Downtown Development Authority and Ann Arbor SPARK could grow.

Asst. City Attorney Abigail Elias, was asked to comment on her Mar. 3, 2015 email in which she writes the City Attorney’s Office represents Sue McCormick. Elias said in an email message, “We do not comment regarding details of pending litigation.”

City Attorney Postema has commented repeatedly on a variety of pending lawsuits. In Mar. 2014, he predicted to the Ann Arbor News that a federal judge would throw out the FDD lawsuit filed in Feb. 2014:

“Any judge would boot this out,” Postema said of the lawsuit brought by local attorney Irvin Mermelstein on behalf of plaintiffs Anita Yu and John Boyer and Mary Raab.

Council member Jack Eaton (D-Ward 4), a labor lawyer, said this in an email response to questions about the City Attorney’s representation of Sue McCormick: “Please note that the City is not defending Ms. McCormick. She is not being sued and is not a party to the litigation. She is merely testifying about matters that arose during her employment with the City of Ann Arbor.”

Eaton also said, “I became aware of the City Attorney’s representation of Ms. McCormick after she had been deposed, when a Lawton neighborhood resident told me.”

Council member Jane Lumm (I-Ward 2) writes in an email, “I was not aware that the City Attorney had decided to use city resources to represent Ms. McCormick.” Lumm also said she had queried City Administrator Steve Powers “…to provide information on the costs incurred and future estimated and budgeted costs for Ms. McCormick’s defense.” Lumm said by email that she is  “…also wondering if this is typical or a standard procedure.”

This latest revelation comes on the heels of a sweetheart deal given to Ann Arbor Building Dept. development manager Ralph Welton. City Council members were not told of the details. Instead, City Administrator Steve Powers announced in Jan. of 2015 that Welton had resigned. However, under the auspices a Separation Agreement signed by Welton and the City’s Human Resources manager, Welton was allowed to postpone his resignation for six months, collect full pay and benefits for doing no work and vest in the city employee pension plan. In addition, Welton was also allowed to cash out hundreds of hours of accruals, including sick time and vacation time.

The A2 Indy was given documents that show City Attorney Abigail Elias has petitioned the Court to quash FDD plaintiffs’ efforts to have lawyers depose Welton. On Mar 7, 2015, four days after attorneys submitted a request to depose him, Welton submitted a signed affidavit in which he swore he knew nothing about the city’s FDD program.

Around the same time Asst. City Attorney Elias was trying to keep Ralph Welton was being deposed, she sent an email to the plaintiffs’ attorneys stating that the City Attorney’s Office was representing City of Detroit employee Sue McCormick at her upcoming deposition. Two attorneys from Stephen Postema’s Office showed up to represent Sue McCormick during her March 2015 deposition.

Sue McCormick is no stranger to legal controversy.

After McCormick assumed her position at the Detroit Water and Sewerage Dept., she was mired in scandal when it was revealed she’d hired Ann Arbor’s former Police Chief Barnett Jones. Jones, the Detroit Free Press revealed, was at the time working full-time for McCormick and as the Police Chief of the City of Flint—jobs 70 miles apart. McCormick did not dismiss Jones.

McCormick then found herself entangled in a labor dispute as a result of plans to cut staffing at the Detroit Water and Sewerage Dept. Last summer, she found herself in the middle of an international incident when she cut off water service to tens of thousands of Detroit’s poorest residents.

The United Nations weighed in on the side of residents, who are still protesting Detroit water cutoffs. Residents from Windsor, Ont. crossed the Ambassador Bridge to deliver thousands of gallons of water to Detroit residents who McCormick’s shutoffs had left high and dry.

While working as the public Services manager in Ann Arbor, McCormick was, by her own admission in a Mar. 2015 deposition, a principle architect of the policies and procedures developed for the city’s Footing Drain Disconnect program. Her involvement went so far, according to her Mar. 2015 deposition, as deciding how to mitigate radon gas emissions that resulted from the digging of crocks (holes) into which sump pumps were installed.

Radon gas is a radioactive substance and a carcinogen. According to the EPA, high levels of radon in homes cause between 15,000-22,000 lung cancer deaths each year in the U.S. In her Mar. 2015 deposition, McCormick fielded dozens of questions concerning why city staff allegedly ignored the recommendations of a citizens’ advisory committee with respect to radon testing and mitigation as a part of the FDD program.  Asst. City Attorney Abigail Elias several times objected to questions as “badgering” the witness.