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Wednesday, March 3,2010

Boards, Commissions and Qualifications

by Neal McNamara and Stephanie Kolp

At least four current
appointees to boards and commissions in the city of Lansing have
apparently violated requirements in the city charter for serving on a
board, a joint City Pulse/WLNS Channel 6 investigation has found.


And
in response to issues with alleged charter violations, the
administration of Mayor Virg Bernero — and including the city clerk,
treasurer, and city attorney — is conducting an internal investigation
of all of the hundreds of appointees in the city to ensure that they
meet the charter’s requirements.


The
controversy over Second Ward Councilwoman Tina Houghton, who
registered, ran and was elected to office while owing property taxes
and who was appointed to the city Parks Board while owing property
taxes, revealed an apparent lack of a system in Lansing city government
for checking the qualifications of elective and appointed officials.
When asked at the time, Bernero said he had “bigger fish to fry” than
watch over the qualifications of every appointee.


Randy
Hannan, Bernero’s deputy chief of staff, said that until recently the
administration relied on appointees to report whether they violated the
charter’s requirements. Hannan said that there was no reason not to
trust citizens interested in volunteering their time to work in
government.


“Why wouldn’t we?” Hannan said when asked about self-reporting. “These are people who are everyday folks in the community. We would have no reason to doubt people.”


When
Houghton was appointed to the Parks Board in November 2007, she had not
paid her taxes due for the summer. Ingham County records showed that
she did not pay those taxes until May 2008.




Alleged default


The charter requires
appointees to be city residents without felony convictions or election
law violations for the last 20 years and not to owe the city money.
City Pulse and WLNS-TV checked all current appointees to the 22 Lansing
boards and commissions under the purview of the City Charter to
determine if any had lapsed in property tax payments during their term,
had ever been convicted of a felony or were not city residents.


The list of
appointees to every board and commission was obtained from the Lansing
City Clerk’s office. The date of each appointee’s most recent
reappointment was checked using Lansing City Council meeting minutes,
which, in some cases, also provided an appointee’s address. Appointees’
names were checked against property tax records kept by the city of
Lansing and Ingham County. Felony records were checked using the state
of Michigan’s Offender Tracking Information System, and residency was
checked using the Ingham County Clerk’s voter registration database.


Almost all appointees met every qualification set forth in the charter. But some did not.


The investigation found these apparent current or past violations:



Board of Police Commissioners Chairwoman Maria Olivia Mejorado was
delinquent in paying $1,889.37 in summer and winter property taxes from
2009 on her house at 1200 Climax St. in Lansing. Mejorado was
reappointed to the board in June 2009. Mejorado was unable to be
reached despite numerous phone calls and several visits to her home.



Income Tax Board of Review member Gloria Nostrant owes summer 2009
taxes on three properties she is listed as owning. Nostrant had not
paid $946.28 on a home at 1135 Cleveland St., $966.07 for a home at
1137 Cleveland St., and $1614.90 on a business at 1240 E. Grand River
Ave. According to City Council meeting minutes, Nostrant was
reappointed in June 2009.


Nostrant
said Monday that her daughter was supposed to pay the property taxes on
Saturday. Nostrant said that she been in Florida off and on recently
dealing with a family health issue, which is why she left her daughter
to pay the taxes. Nostrant said that realized that she’s still a member
of the Income Tax Board of Review, but said that she can’t remember
attending a meeting in about 10 years.


“I should really just call and get my name taken off the list,” she said.



Board of Zoning Appeals member Robert Burgess was found to have been
late paying $403.72 in 2008 winter taxes on a home at 6253 Coulson
Court. Burgess was appointed to the board in December 2002.


Burgess
said that the property taxes that he owed on his Coulson Court home
were paid once he realized that they were late. Burgess said that he
had moved out of his house and lost his principal residence exemption
and did not realize that the taxes would go up.


“I got the (late) notice and it was paid right away,” Burgess said. “As far as I know, it was paid.”


According to Ingham County Records, the outstanding taxes were paid in June 2009.


Additional
apparent violations of the charter include Linda Sims, a police
commissioner, who had not paid about $20 in summer 2009 personal
property taxes for her business, S and S Services, which were due at
the end of August. Sims did not wish to comment on the late taxes, but
told a reporter that she would pay them immediately — according to city
of Lansing records, she paid the taxes on Feb. 19.


Mark
Hiaeshutter and Julie Teed were listed as members of the Demolition
Board and the Traffic Board, respectively, but have since moved from
Lansing and have become registered voters in other municipalities.
However, both Hiaeshutter and Teed told reporters that they had
resigned. In fact, both stated that they knew the requirements set
forth in the charter, which is why they resigned from their respective
boards. Teed said that she resigned over one year ago, and Hiaeshutter
said he resigned in October. Their names, however, still appear on the
city’s list of members of boards and commissions.


A
question of residency came as a result of a property record found for
Ethics Board member Edwar Zeineh. A property listed as being owned by
Zeineh at 609 Isbell St. lists his address as being in East Lansing.
According to Ingham County records, Zeineh is a registered voter in
Lansing, but he did not return calls seeking comment on why he is
listed as living in East Lansing. A woman at the East Lansing home told
reporters that Zeineh had not lived there for some time, and a man at a
home owned by Zeineh on Tecumseh River Drive confirmed that he was
living there.


Zeineh
owns two other properties in Lansing — one on Jones Street and the
Tecumseh River Drive home — both of which list his address as being on
Tecumseh River Drive.


However,
Zeineh resigned from the Ethics Board on Monday, telling the Lansing
State Journal that he had done so for “personal reasons.”


As a part of the
process of checking appointed officials in Lansing, elected officials’
qualifications were also checked, including the city clerk, mayor and
all eight City Council members. None werefound to be lacking in qualifications according to the city charter.




Boards help city run


The
city of Lansing has or is a part of 36 boards, commissions and
authorities. On those governmental boards are over 200 citizens, city
officials and experts appointed by the mayor or City Council. State
statute governs some boards. Others operate outside the scope of
Lansing city government like the Capital Area District Library board or
the Potter Park Zoo board.


The
Lansing City Charter governs a majority of these boards. The charter,
slaved over by a commission set up in 1975, and killed twice by voters
before it was ratified in 1978, sets guidelines for the selection and
qualifications for appointed and elected officials.


The application form for boards and commissions spells out the requirements:


— City residency for at least a year before appointment.



No indebtedness to any city agency for “any judgments, fees, parking
tickets, assessments, unpaid taxes or any monies due to the City.”


— No felony convictions or election law violations or “violations of the public trust” in the last 20 years.


The
form says those qualifications are spelled out in the charter or
ordinances. The form also says applicants must be registered voters,
but City Attorney Brig Smith said the requirement will be removed from
the form.




The response


The
city administration, which appoints most, but not all, appointees to
city boards and commissions, responded to questions over the
qualifications of appointees by saying that it will conduct its own
internal review of every appointee.


City
Attorney Brig Smith said that his office, in conjunction with the city
clerk, treasurer and the mayor’s office, would aid in the investigation
and anyone found in violation of charter qualifications would be given
an opportunity to fix it.


“The administration has redoubled its efforts,” Smith said.


In
case an appointee is discovered to owe property taxes to the city,
Smith said a letter would be sent asking them to “cure the default” or
resign.


Smith said
that his office has not yet contacted any appointees regarding default,
but he could not speak for the mayor’s office.


Hannan
said that it was “late last year” that the administration decided to
undertake a review or every appointed official, but he would not
specifically say whether it was in relation to Houghton. Hannan said he
did not know whether the investigation had produced any results. He
said that Joe McDonald, a special assistant to Bernero, was conducting
the investigation.


“In instances where we find a situation that
needs to be remedied, an individual will get a letter indicating that
they need to take an action to resolve whatever the issue is,” Hannan
said.


At-Large
Councilwoman Carol Wood said that she had asked for a review of all
city appointees around the time questions were being raised about
Houghton.


“There needs to be at least a yearly way to look at that,” she said of appointees’ qualifications.


Wood
said that she had met recently with the City Clerk Chris Swope and
Smith, who told her that the investigation was still being worked on.


Hannan
said that the results of the internal investigation would likely be
compiled or tracked in some manner, but would not be handed out to the
public. He did not know whether an internal investigation would be
carried out on an annual basis.


“I don’t think we’ll call any people out,” Hannan said.




The questions of default


A recent ruling by Attorney General Mike Cox is having an impact on how Lansing defines “default.”


As
the city of Port Huron was undergoing a charter revision, resident Ken
Harris was worried that charter commission members were ignoring the
issue of “default.” Harris had done a little research on the matter and
found that Michigan’s Home Rule Cities Act — a 1909 state law, that, in
part, lays down basic guidelines for how cities can
construct their charters — requires that cities have a “default” clause
in their charters. But even though it is in the Home Rule Cities Act,
Harris could not find a definition. So, last summer, he asked his
legislator, state Rep. John Espinoza, D-Port Huron, to find it for him.
Espinoza sent the question to Attorney General Mike Cox, and on Feb.
10, Cox’s decision was released.


Cox
ruled on a section of the home rule act that spells out the limitations
of power for cities. Included in this section is a line that says a
city cannot “make a contract with, or give an official position to, one
who is in default to the city.” Cox goes on to rule that the term “in
default” in the act means that “at the point in time the contract or
appointment is to be made or given, the person has failed to meet a
financial, contractual, or other obligation to the city after adequate
notice of the obligation and an opportunity to cure it were provided to
the person and the obligation is not the subject of a pending judicial
or administrative hearing.”


Smith
has been the target of public outcry over his definition of default in
relation to the Houghton matter. He says that Cox’s recent ruling
bolsters the definition of “default.”


“Indeed, to read the (Lansing City Charter) and
Home Rule City Act otherwise would lead to potentially absurd results,”
Smith said regarding Cox’s definition of “default.” “To use property
taxes as an example, what if the payment is late by one day? What if it
is later determined that additional taxes are owed? Both the office of
the attorney general and the office of the city attorney read the Home
Rule City Act and other charter language the same way, and that reading
avoids potentially absurd results.”


Smith
said that the city was not officially adopting Cox’s ruling, but is
persuaded by Cox’s definition of “in default” because the language
appears both in the home rule act and in the Lansing City Charter.


“There
is no need to adopt the opinion in any formal way other than to use it
as a resource in analyzing similar questions, to the extent that my
office is persuaded by its reasoning,” he said.


Other
cities have language that is more explicit in their charters relating
to default. In Jackson, the city charter states that a notice of
default for an officeholder or appointee must be filed with the city
clerk and verified by the city treasurer. The appointee or officeholder
then has 30 days to cure the default. In Mason, a default applies not
only to debts to the city, but also the county and the school district.
In the case of Houghton, Smith said that she was allowed to run and win
office because her default had passed over to Ingham County by the time
she registered as a candidate. Mason also spells out that 30 days are
given to cure a default.


The
issue of default has been such a debated topic that the Ann Arbor-based
Michigan Municipal League, which lends help to cities undergoing
charter revision, released a “one pager plus” report on default. The
Municipal League created a sample resolution for villages under the
General Law Village act to removed elective or appointed officers who
are default either by not paying their taxes by the last day in
February, or another kind of debt.


Susan
Hannah, vice chancellor for academic affairs at Indiana
University-Purdue University at Fort Wayne, has lent charter revision
advice to the Municipal League, and says that the issue of default
varies in its definition and usually applies to larger sums of money.


Hannah
said that some city charters are too old to be relevant, but said that
Lansing’s 1978 charter is relatively new by comparison. When asked
about Smith’s interpretation of the Cox ruling, and the fact that
smaller amounts of money would be too absurd to consider default, she
said that Lansing might be able to specify an amount that an appointed
or elective official could owe before it meets the definition of
“default.”

“If people are unhappy, you could proposean amendment to the charter to specify that,” she said.

A
city attorney, she said, could interpret the charter any way he sees
fit. The only recourse of a citizen who disagrees with the city
attorney is to bring the matter to the court. The issue of Smith’s
interpretation of the charter that Houghton was allowed to run and win
office has been challenged twice in court and once before the city’s
ethics board. The first case, brought by Lansing resident Robert Gray,
was dismissed last year. Another suit brought by Lansing resident John
Pollard is ongoing, though Smith has asked for it to be dismissed.
Smith, in asking for Pollard’s suit to be dismissed, cited Cox’s recent
definition of “default.”




Normal public


Tina
Houghton does not remember specifically whether she was nominated to
the Parks Board in 2007, or whether she applied. Further, she contends,
she did not know at the time of her appointment that she was behind on
her property taxes.


“The citizens that want to be on boards are the normal public,” Houghton said. “They have struggles like everyone else.”


But she still believes that appointees’ qualifications should be checked against the city charter.


Houghton
said she believes there should be a checklist for each appointee and
perhaps a member of city government who makes sure that each
qualification is met. Maybe, she said, the application form for
appointees — which is available to download on the city’s Web site —
should be made an affidavit. At the time she filled out her
application, she said, no one explained to her the rules set forth by
the charter.


“I
filled it out, and I don’t think it ever crossed my mind that my taxes
might be behind,” she said. “At that point, I was just excited to
serve.”


But, if an appointee is found to be in default while serving, Houghton said, he should be given the chance to fix it.


“If it had been brought to my attention, I would have (paid the taxes),” she said.


Said
Smith: “Any person identified as having an alleged default to the City
will be contacted and given an opportunity to cure the default. The
city is also considering various approaches to improve confirmation
processes for the qualifications and eligibility of city officials in
the future, including legislation, modifications to city policy, and
revamping the application process for board appointees.”


Wood,
who is the longest serving member of Council, having been first elected
in 1999, said that during the Hollister and Benavides administrations,
a representative from the mayor’s administration would vet appointees
and present their results to Council. She said that under the Bernero
administration, there’s been the assumption that appointees’
qualifications are being checked.


“I guess shame on us as a Council for not checking that,” Wood said. “I would assume that (the administration) would check.”


(City Pulse interns Brandon Kirby and Megan Murphy contributed reporting.)

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