STATE OF MICHIGAN MIKE COX, ATTORNEY GENERAL

Transcription

1 STATE OF MICHIGAN MIKE COX, ATTORNEY GENERAL OPEN MEETINGS ACT: VOTING: Legality of proxy voting under the Open Meetings Act A provision in the bylaws of a city's downtown development authority that allows board members to vote by proxy violates the Michigan Open Meetings Act, MCL et seq, because proxy voting fails to make the important deliberative aspects of the absent board member's decision-making process open to the public when rendering a decision that effectuates public policy. Opinion No March 19, 2009 Honorable Richard E. Hammel State Representative The Capitol Lansing, MI You have asked whether a provision in the bylaws of a city's downtown development authority violates the Michigan Open Meetings Act (OMA or Act), MCL et seq, by allowing board members to vote by proxy. Generally, proxy voting is a form of absentee voting by which one member delegates to another member of a voting body that member's power to vote. The person so designated to vote for the absent member is called a "proxy." Information provided with your letter indicates that the bylaws at issue permit a board member to vote by proxy if the member is "unable to attend a meeting at which a vote on a specific issue is to be taken." The bylaws provide that the "vote by proxy shall be written in such a manner as to clearly state the question as it will be presented to the member and state the answer... in the same manner as would be voiced by the member present at the meeting." The

2 bylaws further provide that the vote shall be submitted in a sealed envelope to any officer of the board and that the "secretary shall enter the vote of the absent member into the minutes and clearly [designate] said vote as being a proxy." The OMA was enacted to promote governmental accountability and to foster openness in government as a means of enhancing responsible decision making. Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 222, 223; 507 NW2d 422 (1993). To that end, the OMA requires that the deliberation and formulation of public policy and decisions effectuating public policy be conducted at open meetings. Under the OMA, a public body's decision-making process is subject to public scrutiny and accountability. Esperance v Chesterfield Twp, 89 Mich App 456, 463; 280 NW2d 559 (1979), quoting Wexford County Prosecutor v Pranger, 83 Mich App 197; 268 NW2d 344 (1978). In accordance with these overarching principles, the OMA requires that "[a]ll meetings of a public body shall be open to the public and shall be held in a place available to the general public." MCL (1). Public bodies must post notices of their meetings and keep minutes of the meetings that include, among other things, "any decisions made at a meeting open to the public." See MCL , MCL , and MCL The OMA also includes significant enforcement mechanisms, providing for the invalidation of decisions not adopted in compliance with the Act and for other civil penalties as well as criminal sanctions. See MCL and MCL through MCL

3 Section 2(b) of the OMA, MCL (b), defines "meeting" in pertinent part as "the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy." Section 2(d) of the Act, MCL (d), defines "decision" as "a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy." Subsections 3(2) and (3) of the OMA, MCL (2) and (3), further mandate, respectively, that "[a]ll decisions of a public body shall be made at a meeting open to the public" and "[a]ll deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public." Based on these definitions, the voting process engaged in by a public body must take place in a session open to the public. Esperance, 89 Mich App at 463; OAG, , No 5445, p 57 (February 22, 1979). Before a decision-making board takes up a matter that effectuates public policy, its members first consider and decide in favor of a motion to present the matter for discussion and a vote of the board. An absent board member who submits a proxy vote would not be part of the quorum present to vote on any motion. The absent member also would not be present at the open meeting to discuss and deliberate toward a decision on the particular public policy matter, to participate in a roll-call vote, or to vote on any number of procedural motions that might arise, such as motions to end discussion, to postpone debate, to reconsider a matter, to renew a 3

4 previous question, to convene in a closed session, or to table an item. These actions all constitute decisions on which a member of a board may be held accountable to the public. The OMA prohibits a voting procedure at a public meeting that prevents citizens from knowing how members of the public body have voted. OAG, , No 5262, pp 338, 339 (January 31, 1978). While the bylaw at issue does allow citizens to be advised of how the absent member ultimately voted, it nevertheless facilitates a process that denies citizens the equally important opportunity to observe that member's deliberation toward and formulation of that decision. Indeed, voting by proxy effectively forecloses any involvement by the absent board member in the board's public discussion and deliberations before the board votes and, if applicable, public comment on a matter effectuating public policy. Moreover, as recognized by a leading guide on parliamentary procedure, to the extent a board member designates someone else to act in his or her place by proxy voting, this practice is incompatible with the essential characteristics of a deliberative assembly in which membership is individual, personal, and nontransferable. 1 These basic principles underlie the OMA's core purpose of requiring meetings of public bodies to be open to the public to ensure public participation. Transparency in government 1 Robert's Rules of Order Newly Revised (10th ed), p 414. The Michigan House and Senate do not allow proxy voting for their members. It warrants mention that proxy voting as discussed in this opinion does not refer to the circumstance where a designee votes for a member as authorized by law. 4

5 results from popular knowledge of how government is serving the people. 2 Indeed, this office has opined that, without explicit statutory authority, the practice of proxy voting is not allowed. OAG, , No 6828, p 212 (December 22, 1994), citing Dingwall v Detroit Common Council, 82 Mich 568, 571; 46 NW 938 (1890); 3 OAG, , No 5065, pp 731, (December 17, 1976); and OAG, , No 4532, p 320 (June 21, 1966). It is my opinion, therefore, that a provision in the bylaws of a city's downtown development authority that allows board members to vote by proxy violates the Michigan Open Meetings Act, MCL et seq, because proxy voting fails to make the important deliberative aspects of the absent board member's decision-making process open to the public when rendering a decision that effectuates public policy. MIKE COX Attorney General 2 Inscribed on the James Madison Memorial Building, Washington D.C., are the words of James Madison: "Knowledge will forever govern ignorance: and a people who mean to be their own governours, must arm themselves with the power which knowledge gives." Madison's Letter to W. T. Barry, August 4, [Capitalization omitted.] 3 In the Dingwall case, the city council counted and recorded the vote of absent members in appointing election inspectors. The Michigan Supreme Court rejected these appointments, commenting that "the counting of absent members and recording them as voting in the affirmative on all questions, was also an inexcusable outrage." 5