Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 222-223; 507 NW2d 422 (1993).
Mallett, J. The dispositive issues in this case are whether the presidential selection procedure adopted by the University of Michigan Board of Regents violated the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., or the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1)et seq.
We find that defendant violated the OMA and the FOIA. Therefore, we affirm in part and reverse in part the Court of Appeals decision.
On April 28, 1987, Harold Shapiro announced his resignation as President of the University of Michigan, effective January 3, 1988. In May of 1987, the Board of Regents, consisting of eight members, appointed itself as the Presidential Selection Committee and began the process of choosing a new university president. The committee appointed Regent Paul W. Brown as chairman and formed three advisory committees to assist it: a student committee, a faculty committee, and an alumni committee.
By the fall of 1987, the Presidential Selection Committee had compiled an informal list of 250 potential candidates to replace President Shapiro. No formal applications were submitted by the candidates themselves. Rather, most of the candidates were recommended by third parties, who advised the committee of the candidates’ qualifications. The committee’s administrative secretary compiled a notebook of information relating to each candidate, and the board members reviewed these materials to evaluate the various individuals. To reduce the field of candidates, the committee made a series of “cuts,” narrowing the list from 250 to one.
The first cut reduced the number of candidates from 250 to 70. The Presidential Selection Committee entrusted Regent Brown with sole authority to make the first cut, and he did so after numerous telephone calls and meetings with the advisory committees and informal subquorum groups of regents. The acknowledged purpose of the telephone calls and the subquorum meetings was to achieve the same intercommunication that could have been achieved in a full board meeting. During this process, the board avoided quorum meetings because it would have been required to conduct a public meeting under the OMA. In fact, Regent Roach told an Ann Arbor News reporter on November 15, 1987, that if it had not been for the OMA and the desire not to discuss these matters in public,
we would [have been] able to sit down with all the regents present, discuss the problems and talk about all the candidates at a much earlier point. [Instead], it [took] three or four hours to go around the horn on the telephones and find out what everybody is thinking.
After gaining thorough input from all the regents, Brown’s first decision was largely an arithmetic function rather than a matter of judgment. However, any regent could review Brown’s list of seventy candidates and request the retention of a particular candidate, despite his decision to eliminate the candidate from consideration.
The second phase of cuts employed essentially the same procedure as the first. During this phase, the Presidential Selection Committee narrowed the candidate list from seventy to thirty. Again, Regent Brown telephoned individual regents, and all regents participated in the reduction process. Subquorum-sized groups of regents met to discuss the candidates and to reach a consensus regarding the desired individuals. One regent testified that candidates were rated, the ratings were tallied and circulated, and Brown discussed the results privately with each regent to insure that the list of thirty would be acceptable to the entire committee.
The candidates themselves made the third cut. Brown called the thirty remaining candidates and asked if they would be interested in the position. At this point, more than half the candidates removed themselves from consideration, but twelve candidates expressed their desire to remain on the list.
In March and April of 1988, groups of two, three, or four regents conducted private interviews in the candidates’ home cities. Although the Presidential Selection Committee referred to these meetings as “visits,” at least one regent conceded that, like any interview, these meetings were to assess and possibly recruit candidates.
Before these interviews, candidates informed the regents that they desired their candidacy to remain confidential by signing a form letter that the board had prepared in advance. Subsequently, the candidates and the groups of visiting regents met to discuss the position and the candidates’ interests and qualifications. After these meetings, some regents submitted written reports of their impressions of the candidates to the other regents, while others telephoned Brown with their impressions.
The fourth cut followed a number of closed meetings held by the board to discuss the remaining twelve candidates, those “most seriously considered” by the Presidential Selection Committee. The board believed that it could now justifiably convene in closed sessions because of the candidates’ request for confidentiality. Following these closed sessions, Brown reduced the list of candidates from twelve to five. Although the regents contended that no voting occurred at these closed meetings, they agreed that they reached a general consensus and that Brown’s list of five candidates reflected the views of the entire Presidential Selection Committee.
On May 20, 1988, the board resolved to form a “nominating committee” to decide which candidates would be placed in nomination for action by the board. On May 24, 1988, before the nominating committee met, seven of the regents held a closed meeting to discuss the results of the interviews and to reveal their opinions regarding each of the remaining candidates. The board insisted that no voting took place at this time. It conceded, however, that, on the basis of a consensus, two of the candidates were preferred over the other three.
Immediately following this closed meeting, the nominating committee met, considered the entire candidate list, and decided that only two preferred candidates would remain. This was the fifth cut. After this decision and various informal discussions between committee members and the two remaining candidates, the nominating committee unanimously decided to recommend one candidate, Dr. James Duderstadt, to the board. Dr. Duderstadt was interviewed in an open session by the regents and by selected student, faculty, and alumni representatives. Following this open interview, the nominating committee met in a closed session, and recommended the nomination of Dr. Duderstadt. The board subsequently reconvened in a public session and voted to elect Dr. Duderstadt president of the University of Michigan.
Booth Newspapers, Inc., doing business as the Ann Arbor News, and the Detroit Free Press, Inc., brought an action in Washtenaw Circuit Court, alleging that the Board of Regents had violated the Open Meetings Act and the Freedom of Information Act. Plaintiffs sought declaratory and injunctive relief against the procedures employed by the Presidential Selection Committee. Plaintiff sought to have the court compel the board to make available the information regarding persons considered for the presidency, the discussions among the regents of the respective qualifications of each individual, and the decisions of certain nonquorum committees as they narrowed the candidates. It also sought disclosure under the FOIA of the destinations to which individual regents traveled for the purpose of interviewing candidates.
The trial court denied all requested relief and granted defendant summary disposition. The Court of Appeals reversed in part and affirmed in part, finding that defendant had violated the OMA, but not the FOIA. 192 Mich App 574; 481 NW2d 778 (1992). Further, the panel enjoined defendant from further use of the procedure that had been utilized in selecting the university president and awarded plaintiff attorney fees and costs to be determined by the trial court on remand. Defendant filed an application for leave to appeal and plaintiffs filed an application for leave to appeal as cross- appellant. This Court granted both applications. 441 Mich 881 (1992).
A. Open Meetings Act
1. The Legislative Intent
Courts are bound to discover and to apply the Legislature’s intent, when interpreting statutory mandates. In re Certified Question, 433 Mich 710, 722; 449 NW2d 660 (1989). The legislative intent questioned in the instant case concerns the degree of accessibility the Legislature intended to afford the general public in observing the decision-making processes of public bodies.
During the late 1960s, Michigan’s Constitution and a patchwork of statutes required accountability and openness in government. In 1968, the Legislature directly addressed this issue by enacting an open meetings statute applicable to most public bodies. 1968 PA 261. The statute required only that public entities conduct final votes on certain subjects at meetings open to the public. Consequently, all other decisions and deliberations by public bodies could lawfully be held in closed sessions. Most importantly, because the 1968 statute failed to impose an enforcement mechanism and penalties to deter noncompliance, nothing prevented the wholesale evasion of the act’s provisions. See 1970 CL 15.251-15.253. In 1973, the Michigan Senate established the Special Senate Study Committee on Political Ethics to study a variety of topics, including the 1968 statute. See Senate Resolution No. 7, 1973 Journal of the Senate 36-37. The committee concluded that revisions to the open meetings law were necessary.
“The fact that only the meetings, or parts of meetings, at which votes are actually taken are considered public effectively insulates members of these bodies from public pressure.
“Since final decisions of a public body are the only items that must be made public, nothing in Michigan law prevents members of any public body, even including school boards, from discussing a proposal, adjourning to an executive session where members can agree privately on the action to be taken and then reconvene the ‘public’ meeting for the one or two minutes required to formally vote on their privately-arranged agreement. Actually, under existing law it is really not necessary for a public body in Michigan to go through even this semblance of openness if it doesn’t want to.” [Osmon, Sunshine or shadows: One state’s decision, 1977 Det Col L R 613, 620, n 54, quoting Preliminary Final Report 10-11 (August, 1973).]
To rectify the ineffectiveness of the 1968 statute, legislators introduced bills to comprehensively revise and substantially improve the law. The current Open Meetings Act resulted from these legislative efforts.
2. The OMA’s Purpose
Yet another fundamental rule of statutory construction is to examine a statute’s purpose as evidenced by the Legislature. In re Certified Question, supra at 722. In the instant case, the OMA’s legislative purposes were to remedy the ineffectiveness of the 1968 statute and to promote a new era in governmental accountability. Legislators hailed the act as “a major step forward in opening the political process to public scrutiny.” 1976 Journal of the House 2242 (June 24, 1976, remarks of Representative Wolpe). During this period, lawmakers perceived openness in government as a means of promoting responsible decision making. Moreover, it also provided a way to educate the general public about policy decisions and issues. It fostered belief in the efficacy of the system. Legal commentators noted that “[o]pen government is believed to serve as both a light and disinfectant in exposing potential abuse and misuse of power. The deliberation of public policy in the public forum is an important check and balance on self- government.” [Osmon, supra at 617.] The prodisclosure nature of the OMA prompted one of its sponsors to describe the law, prior to enactment, as “a strong bill now which provides very limited closed meetings” and “very tight, limited exceptions . . . .” See 1976 Journal of the House 2242 (June 24, 1976, remarks of Representative Hollister). To further the OMA’s legislative purposes, the Court of Appeals has historically interpreted the statute broadly, while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists.
3. The OMA’s Plain Meaning
A thorough examination of the legislative intent and purpose places a statute in its historical context and aids a court in interpreting the statute’s text. When courts interpret this or any other statute, they must look to the plain meaning of the particular law in question. Owendale-Gagetown School Dist v State Bd of Ed, 413 Mich 1; 317 NW2d 529 (1982). In the instant case, the legislative reforms during the 1970s resulted in an oma with broad inclusive language that required a public meeting for “all decisions of a public body” and “[a]ll deliberations of a public body constituting a quorum of its members . . . .”14
The gist of our analysis is whether, on the basis of the OMA’s plain meaning, the Presidential Selection Committee (a) constituted a public body that (b) made closed-session decisions and deliberations, and (c) conducted closed-session interviews in violation of the act.
(A) Public Bodies
The OMA defines a “public body” to include a “committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority . . . .”
Consequently, a key determination of the OMA’s applicability is whether the body in question exercises governmental or proprietary authority. Goode v Dep’t of Social Services, 143 Mich App 756, 759; 373 NW2d 210 (1985). In this case, it is beyond question that the University of Michigan Board of Regents is a public body charged by law and financed by Michigan taxpayers to govern an institute of higher education. The selection of a university president is one of the board’s most important exercises of governmental authority. If it establishes any form of subcommittee and empowers that subcommittee by “resolution or rule” to exercise this particular governmental authority, then that subcommittee is also a “public body” within the meaning of the act.
The board, however, argues that Regent Brown’s actions do not constitute that of a subcommittee and, therefore, his activities as chair of the Presidential Selection Committee fall outside the OMA’s reach. We do not find this argument persuasive. Essentially, the board argues form over substance. The Legislature did not grant any exception to specific types or forms of committees. Therefore, delegating the task of choosing a public university president to a one-man committee, such as Regent Brown, would warrant the finding that this one- man task force was in fact a public body. As the Goode Court observed, “[w]e do not find the question of whether a multi-member panel or a single person presides to be dispositive. Such a distinction carries with it the potential for undermining the Open Meetings Act….” Id., 143 Mich App 759.
Therefore, we hold that the selection of a public university president constitutes the exercise of governmental authority, regardless of whether such authority was exercised by Regent Brown, the nominating committee, the full board, or even subcommittees. Accordingly, this individual or these entities must be deemed “public bodies” within the scope of the OMA. Having established the “public” nature of these bodies, we must now examine the precise actions taken by them and their disposition under the OMA.
Section 2(d) of the OMA provides:
“Decision” means 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. [MCL 15.262(d); MSA 4.1800(12)(d).]
The board insists that the process of reducing the candidate list resulted from recommendations by subquorum groups of regents, the nominating committee of board members, or by Regent Brown acting alone after consultation with individual regents. It maintains that none of these actions constituted formal “decisions” that bound the possibility existed that the board might reconsider their candidate evaluations and reexamine a previously rejected candidate. On each occasion, the board claims that they merely reached a consensus regarding the action that they would take or the candidates that they preferred. In short, the board insists that their actions, in reducing the list of viable candidates, were not subject to the oma because it did not take action by a “vote” as required under the act’s definition of “decision.” It maintains that the only decision that required a public meeting was held on June 10, 1988, when the board actually voted to elect Dr. Duderstadt.
The board bases its argument on the misconception that every term within the definition of “decision” is modified by the last two phrases (“on which a vote … is required and by which a public body effectuates . . . policy”) (emphasis added). In other words, the board erroneously concludes that a determination or an action, for example, will only constitute a “decision” under the OMA if that activity is one “on which a vote … is required and by which a public body effectuates . . . policy.”
This interpretation is substantially flawed, however, when one considers the third activity included within the definition—a vote. Under the board’s construction, the definition of “decision” would include a matter “on which a vote … is required and by which a public body effectuates . . . policy.” Defendant’s disjointed and strained reading of the statute is nonsensical. It is a general rule of statutory construction that courts must construe statutes to avoid rendering words in the statute mere surplusage or nonsense. Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971). A reasonable construction of the definition interprets the last phrase (“by which a public body effectuates … policy”) as modifying the whole definition. The preceding phrase (“on which a vote … is required”) modifies only those clauses that follow the term “disposition.”
The board also contends that open meetings are only required when “formal” voting occurs. The defendant has once again misconstrued the statute. As currently worded, the OMA’s plain meaning clearly applies to “all decisions” by public bodies. The act does not modify the word “vote” by the term “formal.” If this provision were now read into the current OMA, it would resurrect the amended 1968 statute, which has been discredited by the Legislature. The board cannot read into the statute what the Legislature has seen fit to exclude.
Regardless of how the Presidential Selection Committee wishes to categorize its actions, the fact remains that the board adopted a procedure that violated the OMA. The OMA does not contain a “voting requirement” or any form of “formal voting requirement.” Consequently, arguments that the Presidential Selection Committee’s actions were a consensus building process, rather than a mere vote or “formal” vote, are irrelevant. Furthermore, any alleged distinction between the committee’s consensus building and a determination or action, as advanced in the OMA’s definition of “decision,” is a distinction without a difference. Even members of the committee acknowledged that its “round-the-horn” decisions and conferences achieved the same effect as if the entire board had met publicly, received candidate ballots, and “formally” cast their votes. Moreover, testimony of various regents even raises the question whether the board did in fact vote through the use of tallies and a rating system.
The only part of the decision-making process that occurred in public was the final step: Dr. Duderstadt’s selection from a list of one. The Presidential Selection Committee did not make the decision to appoint Dr. Duderstadt publicly, it merely announced the decision publicly. Dr. Duderstadt’s elevation to the position of university president was a fait accompli by the commencement of the public meeting held on June 10, 1988.
In sum, the board’s actions must be considered closed session decisions under the OMA. Any other interpretation of its actions would contradict the act’s letter and spirit. This Court’s failure to recognize this fact would undermine the legislative intent to promote responsible and open government.
Although §3(3) of the OMA requires a public body to hold all deliberations at an open meeting, § 8(f) does permit closed session deliberations “[t]o review the specific contents of an application for employment or appointment to a public office if the candidate requests that the application remain confidential.” The OMA further provides, however, that “all interviews by a public body for employment or appointment to a public office shall be held in an open meeting pursuant to this act.”
The board maintains that this “application exception” permitted it to withhold the candidates’ identities and to justify closure of discussions comparing the candidates’ qualifications for the purpose of reducing the list of viable individuals. The board’s deliberation, however, far exceeded the exemption’s scope. The OMA exception permitting closed sessions to review the “specific contents” of an application would entail discussions about the applicant’s qualifications on the basis of information contained in the application.
In the instant case, the Court of Appeals construed the “specific contents” exemption narrowly and held that the OMA permitted closed sessions only to review personal matters contained in a candidate’s application. We agree. Considering the OMA’s prodisclosure nature, the requirement to strictly construe exemptions and the mandate for open candidate interviews, it is reasonable to assume that the Legislature intended this exemption to be a limited compromise, allowing privacy rights to dictate in instances where boards were not engaged in decision-making activities. Here we agree with the panel that the board went beyond this limitation and made reduction decisions under the guise of this exemption. Clearly, however, the OMA requires that “all decisions of a public body” be made in public. Consequently, the act mandates that the Presidential Selection Committee make any reduction decisions in public.
With regard to the interviews, or “visits” as termed by the board, there is no statutory exception permitting a subcommittee to conduct closed interviews. On the contrary, the Legislature expressly mandated open interviews. In doing so, the Legislature must have recognized that candidates’ identities would become public, and that it was in the greater public interest to know the qualifications of candidates for public positions and the hiring procedures of public officials.
Therefore, we hold that the Board of Regents is a public body that made closed session deliberations and decisions and held private interviews in violation of the OMA.
[ . . . ]
On the basis of an examination of the Open Meetings Act and the Freedom of Information Act, we rule that both acts were violated. Presidential searches at the state’s public universities must be conducted with due regard to the OMA’s requirement of open meetings for all public body deliberations, decisions, and interviews. Travel expense records connected with these searches are not exempt from an FOIA request.
Therefore, we remand this case to the circuit court for entry of a judgment providing injunctive relief and compelling disclosure in conformity with this opinion.
Cavanagh, C.J., and Levin and Brickley, JJ., concurred with Mallett, J.
Boyle, J. (concurring in part and dissenting in part).
Each state has its own Open Meetings Act (OMA) statutes which differ from state to state. This chapter uses Michigan’s OMA as an example of how OMA impacts governmental bodies, including public library governing boards. We strongly encourage readers to review their own states’ OMA statutes.
The Michigan Open Meetings Act (“OMA” or “the Act”) became state law in 1976. OMA and the Freedom of Information Act are both known as Sunshine Laws. They were adopted to make the inner workings of government more transparent and were the result of the Watergate and Vietnam eras. They were designed to provide notice to the public and to dispel the notion that governmental decisions were made behind closed doors in smoke-filled rooms. OMA only applies to governmental entities created by state constitution, statute, charter, ordinance, resolution or rule to exercise governmental authority. OMA does not apply to private entities. This discussion concerns how the Act impacts libraries that are governmental entities, such as public libraries.
In a nutshell, OMA requires all decision-making endeavors on behalf of a public library by a body possessing legal and binding decision-making authority (e.g. library board) are done in a meeting that is open to the public. Deliberations toward a decision must also be made at an open meeting. The Act guarantees the public’s legal right to attend meetings, to address the public body, and record the proceedings. The Act also provides some situations where a public body can go into a private closed session to receive information, but once again, any deliberations towards a decision or an actual decision must be made at an open meeting. OMA also prescribes duties around furnishing meeting notices and keeping meeting minutes. It is notable that an open meeting requirement only applies when there is a quorum of board members present; however, subcommittees (or any board subgroup that has less than a quorum) cannot be utilized to skirt OMA mandates. The Act sets forth penalties and remedies for non-compliance. Finally, perhaps the most important thing to remember is that OMA has been broadly construed time and time again by the courts. No Michigan court has found issue with a governmental entity that was too transparent. The legislative intent is clear: The purpose of the Act is to ensure transparency. We describe each of these considerations below.
What constitutes a “meeting” under OMA? Under subsection 2(b), a meeting “means 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, or any meeting of the board of a nonprofit corporation formed by a city under section 4o of the home rule city act, 1909 PA 279, MCL 117.4o.” It is notable that it is possible to unintentionally have a meeting under OMA if a quorum of board members are present and begin deliberating toward or making decisions about policy. It is contrary to the Act to canvass votes on a policy issue outside of an open meeting. It is important to note also that there is no public meeting requirement if a quorum of board members convene for reasons that do not concern decision making about policy issues. Examples of non-policy activities include: conference attendance, professional training, board retreats for learning purposes, social gatherings, etc.
What is a “decision” under the Act? Subsection 2(c) provides that a decision means “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.” It is notable that receiving information about a topic for consideration in deliberations is not considered deliberations or decision making (unless one of those two things is occurring). As a side note, proxy voting is not authorized by the Act. Proxy voting is the process of one board member delegating their duty to vote on an issue to another board member on their behalf.
What is a quorum? According to Merriam-Webster, a quorum is defined as “the number (such as a majority) of officers or members of a body that when duly assembled is legally competent to transact business.” Plainly speaking, a quorum is a majority.
The Act provides guidance for meeting notice obligations. A meeting cannot be conducted if notice has not been given. OMA Sections 4-6 prescribe where, when, and what, with respect to requirements:
- Section 4 stipulates that notice must contain the name of the public body, including contact information. The Act also requires that notice is (conspicuously) posted at the primary place of business and that if a governmental entity does not have a primary place of business, notice must be posted at the county clerk office (in the county where the entity is located). Notice should also be placed on the governmental entity’s website (if the entity has a virtual presence).
- Section 5 mandates that for regular meetings of public bodies, notice must be provided within ten days after the first meeting of the public body each fiscal or calendar year. If there is a change in schedule, notice must be provided within three days after the meeting where the decision was made to change the meeting schedule. For non-regularly scheduled meetings, notice must be provided at least 18 hours before the meeting.
- In the event that a meeting is recessed for more than 36 hours, notice must be given before the governmental body can reconvene.
- It is also possible to have an emergency meeting “in the event of a severe and imminent threat to the health, safety, or welfare of the public when 2/3 of the members serving on the body decide that delay would be detrimental to efforts to lessen or respond to the threat.”
- The 18-hour notice requirement applies and reasons for the emergency meeting must be included in the notice.
- Finally, it is possible to conduct a meeting at a private residence if “a nonresidential building within the boundary of the local governmental unit or school system is not available without cost to the public body. For a meeting of a public body that is held in a residential dwelling, notice of the meeting shall be published as a display advertisement in a newspaper of general circulation in the city or township in which the meeting is to be held.”
- The notice shall be published not less than two days before the day on which the meeting is held, and shall state the date, time, and place of the meeting. The notice shall be at the bottom of the display advertisement, set off in a conspicuous manner, and include the following language: “This meeting is open to all members of the public under Michigan’s open meetings act”.
- Copies of the notice must be provided upon written request and be sent via first class mail. If a newspaper makes a written request, they are entitled to receive the notice via first class mail free of charge.
When considering the issue of notice under the Act, a good practice is to provide more notice than necessary. There have never been any lawsuits because a governmental entity overshared notice. The Act is meant to facilitate transparency and furnishing notice is critical.
The Act guarantees public rights to attend, make comments, and record public meetings.
- The right to attend an open meeting is at the very core of the Act. The most notable things to keep in mind with respect to attendance are that no one may be excluded from an open meeting unless there is a breach of the peace that has been committed at a meeting and there can be no requirement to register or provide identifying information to attend a meeting. In the event that a public body goes into closed session, it may exclude anyone except one of its own members.
- The public has a right to comment at an open meeting. However, OMA authorizes a public body to place (written) requirements about when the public may comment, mandating that commenting individuals identify themselves and how long they may speak for. Requirements that deny the public its right to comment are not allowed.
- The public also has a right to record, televise, broadcast, etc., any proceedings that occur at an open meeting. The public body can place restrictions to minimize any potential disruption to a public meeting such as to where video equipment can be set up.
OMA requires that minutes are taken and kept for all open and closed meetings. The Act provides that minutes must at least contain date, time, place, members present, members absent, any decisions made at a meeting open to the public, and the purpose or purposes for which a closed session is held. OMA also requires that minutes include all roll call votes taken at the meeting. In the event that a closed session occurs, a separate set of minutes must be taken covering the closed session.
- Open meeting draft minutes must be made available to the public within eight days of the meeting that they were taken for. Approved minutes must be made available within five days after they have been approved by the public body.
- Closed session meeting minutes must be kept at the principal place of business for a year and a day, and are not available unless there is a civil action under sections 10, 11, or 13 of the Act.
- A public body has a duty to approve minutes at the next meeting and it is acceptable to go into closed session to approve closed session meeting minutes.
- If a correction is made to the minutes, both the correction and the original language must be shown (i.e. struck through instead of deleted corrections).
Per section 8 of the Act, public bodies may enter into a closed session meeting if certain circumstances are present and certain requirements are met. The only circumstances where a closed session is permitted are: to consider a disciplinary or evaluation if the person at issue has requested a closed session; for a strategy discussion about a collective bargaining agreement; to consider the purchase or lease of property; when the attorney client privilege applies (for closed session purposes, a closed session is acceptable when the public body is discussing a written legal opinion from counsel); to review employment applications when the applicant requests a closed session; and finally, to consider information that is protected from disclosure by a different state or federal law. A few other things to keep in mind when discussing closed sessions:
- Closed sessions can only be initiated at open meetings and require a 2/3 roll call vote to commence. The reason(s) for entering into a closed session must be stated in the open meeting minutes.
- Once a closed session begins, a separate set of minutes must be kept.
- Again, no decisions can be made in a closed session.
- As previously stated, closed session meeting minutes are exempt for disclosure and must be kept for a year and a day at the principle place of business.
- A simple motion and vote are utilized to leave a closed session.
- The public body has exclusive authority to dictate who (besides the board members who cannot be excluded) can attend a closed session.
So what happens if a public body violates OMA? The Act prescribes penalties for non-compliance. An intentional violation of the Act is a misdemeanor, which carries personal liability for a member of the public body that has committed the violation. A court can invalidate a decision or compel compliance to correct a decision that was made in a manner not authorized by the Act. OMA violations can erode the public trust, which is hard won and easily lost.
In summary, there are multiple intricacies in OMA which have the potential to be problematic if OMA is not followed strictly. At the same time, OMA is a fantastic law that supports public trust and helps to ensure transparency. Being familiar with your state’s OMA statutes is critical and it would be worth reviewing them regularly.
Scenario 1: Highway Hijinks
The XYZ Public Library Board (which is a governing board) carpool in a van to attend a library conference in Traverse City. The XYZ Board is an eight-member board, but only four board members are in the van. They talk about a variety of non-board related things during their drive. Eventually, one of them brings up the XYZ executive director’s performance and employment contract.
The executive director of the XYZ Public Library’s employment contract will be up at the end of the year. The director’s performance has been very strong, with the exception of one unfortunate instance that cast some doubt on the director’s professionalism. The incident came to be known as the donut incident.
Two hours into the board’s road trip, board member J expresses uncertainty over renewing the executive director’s contract and whether to increase the executive director’s salary. Board member J says to the other board members in the van, “I just don’t know how I feel about renewing the executive director’s contract after the donut incident. I am even more uncertain if we should approve a salary increase, even though performance has been high throughout the year. The donut debacle certainly was high profile and I think it made the library look bad. What do you all think? What are your thoughts? We might as well use our time wisely while we drive to get on the same page.” Upon hearing board member J’s thoughts, board member L says to the group, “I understand your concern, J, but I think it would be a huge disservice to the executive director and, more importantly, the library to discount all of the great work that has been accomplished because of one sticky incident. I think we should renew the contract and give the executive director a raise.” A lengthy discussion ensues between all of the board members in the van about the executive director’s performance, the donut incident, the employment contract, and a potential salary increase. After hearing the exchange, board members M and N agree with L’s thoughts. Board member M states, “Based on your comments, I think that we have consensus among us to renew the contract and provide a modest salary increase. Do you all agree?” The group unanimously agrees that it is the right move and also feels confident that the rest of the board will agree. Board member L pledges to contact the other board members to share the good news when they arrive at their destination. They all feel great and have a sense that they used their travel time wisely.
What are the OMA issues in this scenario?
Scenario 2: Closed Session Cluelessness
After the conference, the XYZ Public Library Board meets at their regularly-scheduled board meeting. In this scenario, they did not discuss the executive director’s employment contract or compensation on their previous road trip as they realized they were probably out of line as far as OMA was concerned and had a moment of enlightenment in regards to protocol. (This was short lived). Since the donut incident has become a blemish, at this meeting the board decides to make a policy change to mitigate the chances of a repeat performance, but the details and conversation take a dicey turn and board member J starts to feel uncomfortable that too much “dirty laundry” is being disclosed. Board member J states, “Hey everyone, I think that this is getting a little nuts. We need to discuss the policy change, but I would suggest we go into closed session and not broadcast everything to God and country.” Board member M agrees and makes a motion to go into closed session following a roll call vote, which passes. During the closed session, the sordid details of the donut incident are reviewed and the board agrees that no more bear claw donuts will be allowed in any of the breakrooms around the library system. They vote on the change in the closed session and proudly exit the session with a newly-minted policy change prohibiting bear claw donuts. They keep a separate set of minutes for the closed session and plan on approving them at a closed session during the next regularly scheduled meeting. They all feel like they dodged a bullet by going into closed session as they were concerned that one of their regular attendees, Citizen Zero, would hear their conversation and make a big deal about it in the press.
What are the OMA issues in this scenario?
Scenario 3: Citizen Zero (aka: “I am a taxpayer and pay your salary, dammit”)
Citizen Zero is a regular library user who hates the library. He feels like it is a waste of tax money and regularly attends all of the XYZ Library Board meetings to make sure the board knows that that library is worthless. It suffices to say that he may be considered a difficult and unhappy person by any reasonable standard; however, the XYZ Library Board’s ineptitude in adhering to OMA mandates has been chronic and Zero is rightfully frustrated with them about it. The Board is tired of his constant verbal battery during public comment at their meetings. At the next board meeting (after Scenario 2 has occurred), Zero approaches the microphone during public comment. The Board Chair, board member J, who is fed up with the constant needling tells him to limit his comments to 25 seconds, even though library policy affords members of the public 3 minutes for comments at the beginning and end of each board meeting.
What are the OMA issues in this scenario?
Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich. 211, 222-223; 507 N.W.2d 422 (1993).
Leemreis v Sherman Twp, 273 Mich. App. 691, 700; 731 N.W.2d 787 (2007).
Lysogorski v. Bridgeport Charter Twp, 256 Mich. App. at 302.
Michigan Attorney General Opinions, www.michigan.gov/ag/0,4534,7-359-81903_20988—,00.html.
Michigan Attorney General (Dana Nessel). Michigan Open Meetings Handbook, www.michigan.gov/documents/ag/OMA_handbook_287134_7.pdf.
Michigan Open Meetings Act, 1976 P.A. 267, §§ 1 – 15, M.C.L. 15.261 – 15.275.
Morrison v East Lansing, 255 Mich. App. 505; 660 N.W.2d 395 (2003).
Nicholas v Meridian Charter Twp, 239 Mich. App. 525, 531; 609 N.W.2d 574 (2000).
Ryant v Cleveland Twp, 239 Mich. App. 430, 434-435; 608 N.W.2d 101 (2000).
Schmiedicke v Clare School Bd, 228 Mich. App. 259, 261, 263-264; 577 N.W.2d 706 (1998).
St Aubin v Ishpeming City Council, 197 Mich. App. at 103.
Wexford County Prosecutor v Pranger, 83 Mich. App. 197, 201, 204; 268 NW2d 344 (1978)
Willis v Deerfield Twp, 257 Mich. App. 541, 554; 669 N.W.2d 279 (2003).
Wood v Bd of Trustees of the Policemen and Firemen Retirement System of Detroit, 108 Mich. App. 38, 43; 310 N.W.2d 39 (1981).
Lance M. Werner (he/him/his) is the executive director of the award-winning Kent District Library. He received his Juris Doctorate from Michigan State University College of Law and is a member of the Michigan State Bar. He received his Master’s Degree of Information Science from Wayne State University where he has also been recognized as the Distinguished Alumni for the Information Science College, as well as the entire university. Lance has been recognized as the Michigan Librarian of the Year by the Michigan Library Association and the Librarian of the Year by the Library Journal. Lance was also recognized as a Mover and Shaker by the Library Journal (Change Agent). He has worked as the State of Michigan’s Library Law Specialist and as an academic Reference Librarian at the John Schaffer Law Library at Michigan State University. He has given numerous keynote speeches at state library conferences around the country. He lives in Rockford Michigan with his family and loves spending time with his family and being outdoors.