Was Council Aware of the Successful Class Action Lawsuit Against Seattle’s Percent For Art Program Before Approving Ann Arbor’s Art Ordinance?

By P.D. Lesko

In 2007, Ann Arbor City Council passed the Public Art Ordinance that sets aside one percent of funds from all public construction budgets for art projects — to a maximum of $250,000 per project. On the City of Ann Arbor web site, it says that John Hieftje “championed the Percentage for Art Program to provide consistent funding for public art to beautify the city for decades to come.”

Prior to crafting the ordinance, it’s not clear whether sponsor Hieftje, or more to the point, Ann Arbor’s City Attorney Stephen Postema (pictured right) knew about the Seattle, Washington class-action lawsuit, OKESON VERSUS SEATTLE, that had, in 2005, forced significant changes to that city’s Percent for Art Program. The suit was the first time that any Percent for Art ordinance was legally challenged. A Washington State court found the use of money from city-owned utilities to fund public art illegal, and on appeal the judge’s decision was upheld. The issue was one of nexus – electric and utility funds cannot be used on projects that have no relationship to the mission and purpose of the utility services.

In 2005, several customers of the Seattle City Light utility filed a class-action suit and sued the city over its appropriation of money from the utility for the then 32-year-old Percent For the Art program. According to coverage of the suit published in the Seattle Post Intelligencer on 2005:

In this lawsuit, a lower court judge ruled that City Light could not be required to participate in the One Percent for Art program but could spend funds on art. The ruling stipulates, however, that any artwork must address only the needs of the utility’s employees and customers. Artwork may be purchased to provide a more attractive working environment that increases productivity, for instance, but not to improve the appearance of a power facility in the eyes of the greater community. In other words, the funds could be spent to enhance employee offices but not to mitigate the impact of a power plant on the surrounding neighborhood.

In August of 2005, Americans for the Arts filed an amicus brief in the Percent for the Art lawsuit in Seattle. According to a press release from the organization:

Seattle’s One Percent for Art ordinance is a national model and has been emulated by dozens of cities nationwide. While the lawsuit only addresses its application to Seattle City Light, it is significant, because Seattle is renowned for its public art and because this is the first time, to our knowledge, any Percent for Art ordinance has been challenged in a court anywhere in the nation.  The Washington State Court of Appeals has scheduled oral arguments for this case to take place on September 14, 2005.

Despite intense lobbying from the art community in support of the city’s legal position, as well as support from the local newspaper, the Seattle plantiffs won their case.

Seattle city lawyers had argued that two projects funded with money from the city’s electric utility promoted energy conservation, an important element of City Light’s mission, because they were illuminated by low-voltage lights, an important innovation in conservation. Seattle judge Sharon Armstrong wasn’t persuaded. She found that Seattle could not use the conservation rationale to tap into utility funds “merely because it (a piece of art) mentions salmon, or contains illuminated art work.”

In their lawsuit against the Seattle Percent for Art program, plaintiffs led by Rud Okeson argued that city officials used City Light (a city utility) as a “cash cow” and charged it for a variety of expenses that were illegitimate, including some art projects.

Shortly after Armstrong’s ruling, Will Patton, the utilities section chief for the Seattle City Attorney’s Office, told The Seattle Times, “he believes Armstrong’s ruling on City Light’s art expenditures would also apply to the city’s water and waste-collection utilities, similarly restricting their spending on art.”

In Ann Arbor Utilities Fund Percent For Art Program

City records show that since 2007 Ann Arbor’s Percent for Art fund has siphoned $38,000 from the solid waste fund, $40,000 from the parks millage, $60,000 from the stormwater utility, $367,000 from the water utility, $539,000 from the city’s street millage, $907,000 from the city’s sewer utility, among other funds. To date, according to city officials, about $2.2 million dollars has been moved into the Percent for Art fund.

Thus, the $1.37 million taken from Ann Arbor’s various utility funds could prove to be the Ann Arbor Percent for Art program’s undoing, just as it was in Seattle in 2005, two years before Stephen Postema’s office reviewed the language and legality of Hieftje’s proposed ordinance.

It’s not a stretch to argue that like in Seattle prior to Okeson vs. Seattle, Ann Arbor’s utilities are being used as cash cows and charged for a variety of expenses, including expenses related to the city’s Percent for Art program.

Katherine Talcott, initially hired as a part-time, contract worker in March 2009 as Ann Arbor’s Administrator for the City of Ann Arbor’s Percent for Art Program, told AAPAC’s (Ann Arbor Public Art Commission) commissioners in Fall of 2009 that, in addition to the 20 hours per week that she was paid as the city’s part-time art administrator, she had been working between 10-20 additional hours specifically on the Dreiseitl project for the Police-Courts building, a $750,000 project that has elicited public derision and ire, not to mention negative national publicity when it was revealed that Ann Arbor was spending $750,000 on art at the same time elected officials voted to cut firefighters.

Talcott told AAPAC those extra hours were authorized by Sue McCormick, the city’s director of public services. Why? Because Talcott’s pay came from Ann Arbor’s water & sewer fund. The logic for use of the sewer and water fund money was that the Dreiseitl project promoted education about water and water conservation.

Ann Arbor officials told AnnArbor.com that, “The city’s administration stresses that all public art projects must serve a purpose somehow related to the source funds. For instance, $750,000 in utility funds is paying for a sculpture being installed outside of city hall that will recycle stormwater.”

It’s the same flawed reasoning that Seattle Judge Sharon Armstrong found against.

Stonewalling Council member Kunselman’s Repeated Calls For a Legal Review of the Percent For Art Program

Third Ward Council member Stephen Kunselman (pictured left) has repeatedly spoken out against the city’s Percent for Art Program and the potential illegality of siphoning money from capital projects, such as street reconstruction and resurfacing projects, paid for by dedicated millage funds. He’s waiting for the Ann Arbor City Attorney to issue a written legal opinion. Though the City Charter requires City Attorney Stephen Postema to file written legal opinions with the City Clerk for the public to peruse, Postema has never filed one addressing Kunselman’s concerns. When, recently, Kunselman again brought up the question of the legality of the city’s Percent for Art Program, Postema was quoted as saying “his office has reviewed the Percent For Art Program and he’s not aware of anything illegal about what the city is doing.”

Despite public concerns and vociferous criticism leveled in the comment sections of A2Politico and AnnArbor.com, the Percent for Art Program has been consistently protected by Hieftje and a majority on City Council.

On December 7, 2009, a few months after Council voted to further shrink the city’s police and fire departments, Council voted to approve a resolution which proposed a temporary three-year cut in funding for the Percent for the Art Program from one percent to one-half of one percent. The proposed resolution to cut the funding was sponsored by John Hieftje and First Ward Council member Sandi Smith. Ten days later, the same Council members who had voted in support of the temporary cut to the program’s funding reversed themselves. Fourth Ward Council member Margie Teall “compared the idea of reducing the percentage to taking back a tax abatement that had been granted,” according to coverage of the meeting by the AnnArborChronicle.com. Second Ward Council member Stephen Rapundalo argued more passionately to save funding for the Percent for the Art Program than he ever has to save the jobs of the city’s firefighters or police officers.

Hieftje also spoke against the resolution he had co-sponsored, and was quoted in the AnnArborChronicle.com as saying, incredibly, that “art might help us climb out of the economic downturn.”

It was classic knee-jerk politics.

In 2011, a resolution sponsored by four Council members to reduce or eliminate funding to the Percent for Art Program was defeated, as well.

Potential For Legal Embarrassment for Postema and a Political Quagmire for Hieftje

To be sure, should the Percent for Art program be challenged in court and, like Seattle’s program, be found to have illegally tapped into utility fund dollars to pay for public art, it will prompt a rash of embarrassing questions for the Ann Arbor City Attorney’s office. Like Seattle’s Mayor Schell, who had advocated for a Percent for Art Program in his city, and who had been deeply embarrassed by the judge’s finding that the program had been funded in large part through illegal means, there’s no doubt John Hieftje would be embarrassed, as well.

As for Stephen Postema, the first question that would be asked was whether his office had reviewed OKESON VERSUS SEATTLE during the course of approving the legality and language of Ann Arbor’s ordinance. It might appear a rather glaring professional error to have allowed Ann Arbor to use utility money to fund its Percent for Art Program when, just two years earlier, Seattle’s ability to do so had been found to be illegal by Judge Sharon Armstrong, a decision upheld on appeal to a higher court.

Hieftje and Postema would, perhaps, be even more deeply embarrassed than Schell. They would have to admit that Stephen Kunselman’s incessant questions over the past two years concerning the legality of the city Percent for Art Program had, in fact, been right on the money, so to speak. In response to Kunselman’s latest attack in which he was quoted in AnnArbor.com as calling the use of street millage money “illegal,” Postema told the news site he would “gladly issue a written opinion when the council as a whole directs him to do so.”

Council as a whole, of course, has never directed Postema to issue a written opinion about the legality of the Percent for Art Program, or anything else in the over 8 years he has served as the City Council’s attorney.