Thank You for registering for the three-part Elected Officials Webinar Series. Welcome to Session Two: Open Meetings Act (OMA) Upcoming League Events: The Medical Marihuana Act & Your Community February 10 EOA Core Weekender February 18 19 EOA Advanced d Weekender Fb February 18 19 19 Essential Skills for the Elected Official March 10 2011 Capital Conference April 5 6 1
OMA: Basics of Michigan s Open Meetings Act William Mathewson, General Counsel 2 Better Communities. Better Michigan.
Policy of the Act The basic intent of the Act is to strengthen the right of all Michigan citizens to know what goes on in government by requiring public bodies to conduct nearly all business at open meetings. 3
An overview of: Presentation 1) the basics -- the requirements of an open meeting 2) the key areas of dispute -- when a local government might be found to violate the OMA. When must an open meeting be held? When does an exception apply? *A cautionary note: this presentation is intended to cover the concept of the OMA and its basic provisions. There is no substitute for consulting with your city or village attorney, who can interpret the law in the context of your community s particular circumstances and the most recent case law. 4
Basic Requirements All meetings of a public body shall be open to the public All decisions of a public body shall be made at a meeting open to the public All deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public, except for closed sessions 5
Open Meetings Act Applies if A meeting is subject to the Open Meetings Act if: 1. a public body (including committee, subcommittee) 2. meets with a quorum present (or constructive quorum) 3. to deliberate toward or render a decision 4. on something on which a vote by the public body is required and by which a public body effectuates/formulates public policy 6
The OMA controls the conduct of the members of public bodies when a quorum, and sometimes less than a quorum, gather to deliberate or vote on issues. Generally, the statute t t requires that all meetings of public bodies be conducted in public pursuant to notice, so that the public may attend and take part. (Local Government Law and Practice, 12-3) 7
A Public Body Is A legislative or governing body including a board, commission, committee, subcommittee, authority or council performing a governmental or proprietary function. 8
A Meeting Is 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 NOTE: Beware of constructive quorums or subquorums. ** In response to Ms. Scott s question regarding g what is a constructive quorum, as I mentioned it is not in the Act but rather is the creation of a court decision. Black s Law Dictionary does not define it per se, but does define constructive : That which is established by the mind of the law in its act of construing facts, conduct, circumstances, or instruments. That which has not the character assigned to it in its own essential nature, but acquires such character in consequence of the way in which it is regarded by a rule or policy of law; hence, inferred, implied, or made out by legal interpretation, t ti the word legal l being sometimes used in lieu of constructive. ti [Emphasis added.] d Thus, a court may infer, imply or construe by legal interpretation that a quorum existed even thought it did not literally exist, if the circumstances and facts, in the court s judgment, are sufficient to do so. By analogy, a constructive eviction, which is a common legal term, is one where the landlord, while not actually depriving the tenant of possession, has done some act by which the premises are rendered untenantable. Eg., the landlord doesn t actually physically evict the tenant..he/she turns off the heat and water.which constitutes a constructive eviction. And the landlord may be held legally accountable for an eviction. 9
A Decision Is A determination, action or vote on a motion, proposal, recommendation, resolution or ordinance, on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy. 10
Basic Requirements Public meetings shall be open to the public and held in a place available to the general public. They do not have to be held in the municipality, but can t be so far away that they are inconvenient. 11
Basic Requirements, cont. Persons attending the meeting may tape record it, video tape it, broadcast it live... but the governing body may have rules to minimize the possibility of disruption of the meeting. Citizens have the right to address the meeting, but the governing body may limit this to a public comment portion of the meeting and restrict titthe amount of ftime an individual diid may speak. If provided in your local rules, persons wishing to speak can be required to identify themselves, per an opinion of the Attorney General (OAG 5183, 1977). (The OMA does not mention this option. Also, requiring identity for merely attending a meeting is not permitted.) 12
Basic Requirements, cont. If a question from the public may be simply answered, go ahead. Council, however, is under no obligation to respond to questions during the public comment portion of a meeting. Resist debate during public comment portion of a meeting. Presiding officer may state, Your comments are noted. Thank you. 13
Requirements - Notice Post a list of regular meetings (dates, times, places) within 10 days of the first meeting of the new calendar or fiscal year. If there is a change in the schedule, you must post a new schedule within 3 days of the meeting when the change is made. For special or irregular meetings, you must give 18 hours notice. Per the Attorney General, if the public is denied access to the notice for any part of the 18 hours, the notice is not valid. If a regular meeting is recessed for more than 36 hours, you can t reconvene without an 18 hour notice posting. 14
Requirements Notice, cont. Citizens can request that the public body put them on a mailing list so that they are notified in advance of all meetings. The governing body can charge a reasonable fee for this. Newspapers, radio and TV stations may request notices without cost. Emergency sessions may be held without written notice if public health, safety or welfare is severely threatened and if 2/3 of the public body votes to hold the meeting. 15
Requirements Minutes Minutes must be kept of all meetings. Minutes are public records and must be available for review and copying (except minutes of closed sessions). 16
Requirements Minutes, cont. Draft minutes must be available for public inspection within 8 business days of the meeting. Approved minutes must be available within 5 business days after the meeting at which they were approved. Corrections must be made no later than the next meeting after the meeting to which they refer. Corrected minutes must be available not later than the next meeting after the correction and must show both the original entry and the correction. ** In answer to the question by Mr. Bisio, the Michigan Compiled Laws (MCL) at 15.269 (1) simply states The corrected minutes shall show both the original entry and the correction. There are no cases or AG opinions reported in Michigan Compiled Laws Annotated (MCLA) on this point. I would suggest that the clerk in consultation with the attorney devise a format that is acceptable to the council. 17
A Closed Session Is Even if all the conditions exist making the meeting subject to the Open Meetings Act, there are a limited number of circumstances in which the public body may meet in a closed session. Thus the meeting may be held in closed session if it properly falls within one of the designated exceptions that are identified in the Act. 18
Closed Sessions Unless the conditions exist for one of the 6 exceptions, all meetings of local units of government must be held in open session. The easiest way to avoid running afoul of the OMA is to conduct all meetings in open session. Note that even when closed sessions are allowed, the action by the public body must be taken in open session. 19
Closed Sessions When Permitted 6 Reasons for a Closed Session: 1) If requested by the named person, to consider dismissal, suspension or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer or employee. 2) For strategy and negotiation sessions connected with negotiation of a collective bargaining agreement if requested by either negotiating party. 3) To consider purchase or lease of real property up to the time an option to purchase or lease of that property is obtained. 20
Closed Sessions When Permitted 4) To consult with an attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the municipality s litigation or settlement position. 5) To review and consider contents of an application for employment or appointment to public office if the candidate requests that the application remain confidential. Interviews by a public body for employment or appointment to public office must be held in an open meeting. 6) To consider material exempt from discussion or disclosure by state or federal statute. 21
Closed Sessions Calling It, Closing It From an open meeting, a 2/3 roll call vote is required, except for closed sessions permitted under MCL 15.268(a) (discipline, personnel evaluation, etc. of official/employee) or MCL 15.268(c) (collective bargaining) which require a simple majority vote. The roll call vote and the purpose for calling a closed session shall be entered into minutes of the open meeting. Normally one of the members of the public body moves to return to open session. The body performs any action required as a result of the closed session in open session. The meeting then proceeds with other matters or adjourns in the normal fashion. 22
Closed Sessions Minutes The OMA requires that a separate set of minutes shall be taken at the closed session. According to an opinion of the Michigan AG, the minutes must reflect the date, time, place, members present and absent, and purpose of the closed session. (OAG No. 6817) The clerk or a designated secretary of the public body takes the minutes. The minutes may only be disclosed if required by court order in a civil action filed in accordance with MCL 15.270, 15.271 or 15.273. OAG No. 6353 provides that t disclosure may not be made even if the person requesting the closed session subsequently waives or withdraws the request and consents to disclosure. 23
Closed Sessions Minutes, cont. The public body may meet in closed session to approve the minutes of a closed session -- if the decision to do so is made in an open session of the public body. The minutes may be destroyed one year and one day after approval of the minutes of the regular meeting at which the closed session was approved. The minutes of a closed session are exempt from disclosure under the Michigan FOIA unless required by court order in accordance with the OMA. 24
Email: Is it a Meeting? Communications Technology Is it a Meeting? If e-mail is used by members of a public body for substantive ti discussions about matters pending before that unit of government, this may be viewed as a meeting under the OMA. Keep the intent of the Act in mind did the members of the public body just passively receive some e-mails mails, or did they actively exchange e- mails showing an intent to deliberate? At the very least, be careful if you hit reply to all. Blog / is everyone in the chat room at the same time? 25
Is it a Meeting? Committees Keep in mind that committees and subcommittees are subject to the OMA, except those which adopt a non-policy making resolution of tribute or memorial. Committees that t include no members of the public body itself can be subject to the OMA. A subquorum committee of the council that is appointed to only make a recommendation to the public body can be subject to the OMA. 26
Is it a Meeting? Subquorum Committees In some instances public bodies have divided into multiple subcommittees, met in private and then provided advice to the public body. Michigan courts have used the theory of constructive quorum to hold that this violates the OMA. The practical effect of various interpretations by the courts of the Act is that most activities of sub quorum groups are violations of the Act. Illegal subquorum group activities include meeting to deliberate on public issues, using interlocking memberships on separate committees, circulating reports between committees, or using telephone polls to coordinate among a quorum of the public body. (Local Government Law and Practice, 12-10) 27
Is it a Meeting? Subquorum Committees Key: Is the committee operating with the delegation of authority to perform a governmental function? If so, in effect, it becomes the public body. In Standish School case, the Court of Appeals held that since the Superintendent and Hiring Committee got authority from the Board - - did not have it independently - - that it was a public body where finalist selections and interviews were conducted privately with two Board members present. 28
Is it a Meeting? Subquorum Committees An informal poll taken by a mayor as to how the council members would vote on an issue was held to be permissible... where the intent was not to circumvent the OMA. NOTE: Even though constructive quorum is NOT in the OMA, it now has been effectively created by decisions of the COA and Supreme Court. 29
Is it a Meeting? Subquorum Committees The Court of Appeals held it was a violation of OMA where 2 commission members openly stated that they were going to discuss a matter in subquorum groups in order to avoid violating the OMA. The 2 commissioners met separately and individually with 3 other commissioners. The full commission took the ultimate action in open session. Ironically, the 3 commissioners ultimately did not vote the way the 2 wanted them to vote. Yet the COA still held the 2 intentionally violated the OMA. It also upheld the trial court s decision to invalidate the action taken by the full commission - - but noted it could be reenacted. 30
Consequences of a Violation The action in question may be invalidated. Under the OMA, the AG, county prosecutor, or any person (which includes a newspaper) may bring a civil il action in circuit it court to challenge the validity of the action taken by the public body. Suit must be brought within 60 days of approved minutes being available; 30 days for actions re contracts, bids, bonds, etc. The court can invalidate the action, but generally there must be an actual impairment of a public right. An invalidated action may be reenacted if done properly. 31
Consequences of a Violation A public body is subject to an injunction to compel compliance with the OMA or to prohibit further noncompliance. Persons who bring these suits may be awarded court costs and actual attorney fees. The OMA also provides for criminal misdemeanor penalties against any public official who intentionally violates the act. (90 days and $1,000 for the first offense; up to 1 year and $2,000 for the second) Public officials who intentionally violate the OMA can also be subject to personal liability, up to $500 and court costs and actual attorney fees of the person or group that brings suit. 32
Meetings/Public Hearings Council can adopt rules and procedures Attendance and absences of councilmembers Times and length of public comment Voting responsibility Access to attorney (who is authorized) Can adopt Robert s Rules of Order 33
Meetings: General Responsibilities Arrive on time; be prepared and informed Get recognition of presiding officer before speaking Have basic knowledge of parliamentary procedures adopted by council Manager participates in discussion, does not vote 34
Responsibilities of Presiding Officer Acknowledge members wishing to speak Be courteous to members of council and to public Enforce fairly the rules of council Enforce fairly the public comment portion of meetings 35
Question 1 Is it a meeting if The mayor contacts each councilmember to find out his or her position on the city manager, before the manager s status is reviewed at a regularly scheduled council meeting. A city council and city manager were at odds. Some of the councilmembers wanted to terminate the city manager. Before a meeting at which the city manager s status was to be considered and possibly terminated, the mayor contacted each councilmember to determine his or her position on the city manager. The city claimed in the resulting lawsuit that the mayor s action did not constitute a violation of the OMA. 36
Answer The court held that the mayor s action did not constitute a violation of the OMA. The court noted that the mayor was just trying to learn what sort of situation he was going to have at the meeting, and there was no attempt in his conversations with each councilmember to discuss the situation or to change any council s position on the city manager. (St. Aubin v Ishpeming City Council, 197 Mich App 100 (1992)) It is likely the court would have reached a different decision had the evidence indicated that the discussions between the mayor and each councilmember had gone beyond a statement of the position of the councilmember on the city manager s status. 37
Question 2 Is it a meeting if Several members of a public body enough for a quorum remain after an open meeting to engage in informal discussion. After a meeting of a public body, a quorum remained in the meeting room and engaged in an informal discussion. It was alleged that the discussion included inviting a person to speak at an upcoming meeting and financial matters. It was claimed that this discussion after the formal meeting constituted an illegal meeting under the OMA. The members of the public body testified that innocent discussion had occurred following the meeting and that the person had been invited to speak to the board prior to the meeting. 38
Answer After considering the testimony of all the witnesses, the court determined that there had been no deliberation by a quorum of the remaining board members after the meeting and there was no violation of the OMA. The court stated that if a quorum is present but does not deliberate or render a decision, the OMA is not violated. (Solom v Dickinson County Library Board, COA #235062, June 14, 2002 (unpublished)) 39
Question 3 Is it a meeting if The school board president keeps individual board members informed about a separation agreement that is being negotiated with the superintendent A school superintendent and school board were having difficulty. The superintendent informed the school board president that he wanted to resign. The board president directed the school district s attorney to begin discussion for a separation agreement with the superintendent. The president informed the individual board members of the status of the situation and kept them informed as the process moved on. The board attorney negotiated a separation agreement with the superintendent, and the agreement was approved by the school board in a public meeting. A violation of the OMA was alleged. 40
Answer The court ruled that discussions by the president with individual members of the school board about the superintendent s s desire to terminate his contract did not constitute a violation of the OMA. The court concluded that all decisions were made in open sessions of the board and that informal discussions among members of a public body regarding an issue before the body do not violate the OMA if no decision is made during the discussions and the intent of the discussions is not to violate the OMA. It was not shown that individual board members or subquorum groups made decisions regarding the termination of the superintendent s employment or approval of a severance package prior to the public meetings. (Finn v Flint School District, COA #237105, December 20, 2002 (unpublished) 41
Question 4 Is it a meeting if The township supervisor addresses the planning commission with enough other township board members in attendance to equal a quorum. The township supervisor addressed a meeting of the township planning commission regarding a zoning issue. Three other members of the township board were also present at the planning commission meeting, one of whom was a member of the planning commission. It was alleged that the gathering of the three members of the township board and the township supervisor addressing the planning commission constituted a meeting of the township board which violated the OMA. 42
Answer The court held that the supervisor s comments to the planning commission did not constitute deliberations and so long as the board members did not exchange any affirmative or opposing views, debate the matter at issue, or engage in any discussion about the statements made by the supervisor to the planning commission, the gathering did not qualify as a meeting of the township board for which notice was required. (Ryant v Lelanau County, COA #230429, June 28, 2002 (unpublished) 43
Question 5 Is it a meeting if A public body forms a task force that includes some of its members, and another member attends the task force meeting, making the total in attendance enough to be a quorum of the public body. A public body appointed a task force to consider a certain issue. The task force included members of the public body and others, but not a quorum of the public body. Another member of the public body attended the task force meeting as a private citizen. This made a quorum of the public body at the task force meeting. One of the members of the public body who was on the task force responded to remarks made by the member who was attending as a private citizen. It was alleged that the quorum of the public body being at the task force meeting and this exchange violated the OMA, and that the exchange between the two members constituted deliberations toward a decision. 44
Answer The court stated that the remarks made by the one member in response to the other were primarily to clarify his statements. The court observed that none of the remarks could be considered responsive and that the two members of the public body did not engage in active debate. As a result, the court held that no deliberations took place during the meeting. (Ryant v Cleveland Township, 239 Mich App 430 (2000)) 45
Question 6 Is it a meeting if A local government holds a properly noticed committee meeting, and a quorum of the elected body attends. Several of a township s committees held a properlynoticed committee meeting at which a quorum of the township board was present. Township board members discussed township business during these committee meetings. It was claimed that the discussions by a quorum of the township board at the committee meetings was a violation of the OMA because the meetings were not properly noticed as meetings of the township board. 46
Answer The court agreed and held that because the members of the township board discussed township business at the committee meetings, this constituted deliberations which should have occurred in a properly noticed meeting of the township board. (Nicholas v Meridian Charter Township Board, 239 Mich App 525 (2000) 47
Question 7 Is it a meeting if The school board s Personnel and Policy Committee (PPC) met in private to review methods for evaluating school administrators and the length of employment contracts with administrators. The 7-member school board passed a motion delegating to the Personnel and Policy Committee the task of reviewing whether the school district should retain its current method for evaluating school administrators and whether the length of administrator contracts should be changed. The PPC was comprised of 3 members of the school board. The PPC met privately and formed a recommendation to leave the administrator evaluation system and the length of administrator contracts intact. The school board received the recommendation but took no action on it, apparently because the PPC did not recommend any changes. A person who was denied access to the PPC meeting filed suit, claiming that the OMA had been violated. 48
Answer The court held that the school board s referral to the PPC for a recommendation was a delegation of authority to perform a governmental function. The PPC failed to openly deliberate on the governmental function that the school board had delegated to it. The school board adopted the PPC s recommendation which effectively foreclosed any involvement by members of the public and essentially meant that the decision made by the PPC at a closed meeting was a fait accompli. (Schmiedicke v Clare School Board, 228 Mich App 259 (1998)) 49
Question 8 Is it a meeting if Individual members of the school board were allowed to prepare superintendent evaluation forms in private that were later used to compile a statistical summary that formed the basis of the decision to retain the superintendent. Although it was not mandatory for school board members to participate in the evaluation of the superintendent, the members privately prepared evaluation forms which were compiled in a statistical summary. The evaluation procedure resulted in the absence of any deliberations at a public meeting. On the basis of the summary, the decision was made to renew the superintendent s contract. The evaluation forms were thrown away after the statistical compilation was made. The school board was sued on that basis that a meeting was held in violation of the OMA. 50
Answer The court held that there were no round-the-horn deliberations, decisions, or conferences. Rather, each individual school board member who chose to do so privately completed the evaluation forms. The court found that no meeting actually occurred. (Schmiedicke v Clare School Board, 228 Mich App 259 (1998)) 51
When in doubt, keep in mind the basic intent of the Act to strengthen the right of all Michigan citizens to know what goes on in government by requiring public bodies to conduct nearly all business at open meetings. Courts will keep the basic intent in mind! 52
Source Material Resource materials include MML One-Pager Plus publications that reference OMA. Go to www.mml.org. Click on Resources, then Publications, and then One-Pager Plus. 53
Session Three: January 25, 2011 Topic: Freedom of Information Act (FOIA) Time: 12:30-1:30 pm 54