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Understanding the Open Meetings Act: Notes on a session with Eleanor “Coco” Siewert

October 9, 2012

My rapidly typed notes from the October 8, 2012 meeting with Eleanor “Coco” Siewert on “Understanding the Open Meetings Act” at the Ferndale Public Library.  Apologies if I missed anybody’s name or failed to accurately capture spoken content.  As always, just let me know and I will make the needed changes.

More information can be found here: http://www.michigan.gov/documents/ag/OMA_handbook_287134_7.pdf
Ms. Siewert based her presentation on Don Schmidt’s chapter on OMA from Local Government Law and Practice in Michigan.  The 19 chapter publication is a publication by the Michigan Municipal League and the Michigan Association of Municipal Attorneys.  Mr. Schmidt is a partner in the law firm of Miller Canfield Paddock and Stone.

The open meetings act is interpreted all the time.  It is amazing how many interpretations the Attorney General has made and have come from court cases.  Those arise because people often do not what the act says it should do.  The act is only 5 pages long.

I’d like tonight to acquaint you with the open meetings act.  I am a parliamentarian, and just today I had somebody swear to me that you could not be nominated if you serve on the nominating committee.  When you correct people, assume that they won’t say, “oh, thanks.”

Where did the Open Meetings Act come from?  The newspapers, particularly the Detroit Free Press argued that Michigan should have a “Sunshine Law.”  Newspapers are the entity that are most likely to point out if you have not met the open meetings act.  Most of the notices of violations come from journalists and newspapers.

The basic intent of the law is to allow citizens to know what goes on in its government by holding nearly all business in.  It was intended to benefit the citizens and that is the spirit in which most decisions are made.  The definition of “a public body” is quite wide.  A meeting is a meeting where a quorum is present for the purposes of deliberating toward or making a decision.”  Quorum is the number needed to transact business as determined in the bylaws.  In a municipality or other body we look in state law.  This is why we always need an uneven number.  “Deliberating toward” is often a problem. People will say “we were only talking about it.”  Where “deliberating toward” is a part of the committee process, then the committees must follow the open meeting act.

Requirements: The open meeting act controls the parameters of deliberation when a quorum, and sometimes not quite a quorum, is not present.  The question of polling is key.  It is ok, for example, if a Mayor calls each person and asks them.  If the Mayor says, “I’ve talked to others and they agree,” that is not ok.

One of my favorite examples is that during the board meetings, board members were logged in a chatroom and discussing during the meeting, which the public could not hear.

[Twomey] If city council receives a note asking for a response, it would be necessary to send a single return.

[Twomey] You cannot do a reply all so that everybody sees what everyone else is writing.

[Siewert] It is ok to send out email but not to engage in discussion.  Email is discoverable in court, and it does not matter whether you are using an organization computer or a personal one.

Everything shall be in public, so that the public shall be able to attend and take part.  Meetings do not have to be held in the school district, but cannot be so far that it is inconvenient.

The next rule, often called the Detroit rule.  Persons can attend, record and broadcast live, but there may be rules to prevent disruption.  The court said “absolutely a person can record” but not in such a way as to disrupt the meeting.  A council member recently said “what should I do if there is a person taping me” and the answer is “then tape yourself.”  You do not have to show me that you are taping me, and that is alright.

Citizens have the right to address a meeting but it may be limited to a public comment period.  Every public meeting, subcommittee, etc. must have time for public comment, even a study session.  You can put it where you want to.  I recently chaired a taskforce on sewer, streets and water and we decided we would have our public comment last, because we were an information gathering group.  There should actually be something in the minutes to allow for comments, “I move that…”  Many cities have things open to the public for things on the agenda at the beginning and those for things not on the agenda at the end.  By the end of the agenda you can have people talk about anything they like.  Another thing that has been growing is comment on each items as they come forward.  The percentage of groups that had that 20 years ago is much smaller than it is now.

[VanderWeele] How does that work for timing?  Does it speed it up or slow it down.

[Siewert] The citizens seem to like it. It helps speeches.  I am not finding that it is delaying the meeting.  I am coming from a community where that is normal.  I am currently working with an organization where the speech.

[Twomey] Does the comment come at the beginning of the agenda item or after the presentation?

[Siewert] After the information is provided. Sometimes council members speak before the public and sometimes after.

The act says you have to have comment and you can determine when.

Note the last item “they may be required to identify themselves.”  The Michigan association of municipal attorneys.  Many organizations do not use cards.  That is not very common in communities unless you are having a public hearing.  When we have a big hearing, we have cards so that the chair can call off.  Generally speaking in most municipal communities you do not find cards or sign ins.  That is more school districts.  Do you have to say who you are?  In many communities they do not even task.  If it is not going into the minutes, they

The open minutes act say “what was done” not “what was said.”  I asked how people handle it: The person who put in the least said “I just said 15 people spoke” whereas the one who did the most said “I put the names and topics.”  The one who said the least said they list names only when there are assignments.

[Mueller] Does the act require them to mention what it is about?  A board can say it if they want it.  What the attorneys are arguing about is whether they can be required.  It certainly is all over the board.  If the open meetings act wanted that they should have to say what people were talking about, it would say that.  In Royal Oak they had some controversial issues over time in front of their city council and people from other states, but all the OMA says is that they must be citizens.

Requirements of notice.  Post a list and if there is a change, you must post a new schedule within 3 days of when the change is made.  According to the Attorney General.  If the public is denied access for any of the 18 hours, then it does not get counted in the 18 hours.

[Butters] How does that apply to an online notice?

[Siewert]  Let’s take the library for an example.  During what hours could people have access?  You could assume that people could do it.  Not everyone has

If a regular meeting is recessed for more than 36 hours, you cannot reconvene without a 18 hour notice.

[Hanks] What is the operationalization of “special meeting”?

[Siewert] Any meeting that is not on the schedule.

[Hanks] What about when they have not met in a long time

[Siewert] When you call a special meeting, that is all you can talk about.

[Hanks] How responsible is the governmental body to make it

[Siewert] That is in the notice.  It should be made clear that this is all the meeting is about.

[O’Donnell] If we post a special meeting on a specific topic, can we change the agenda later?

[Siewert] No, because the public would not be expecting that.  You can call it for multiple items but it cannot be called for multiple reason.  People like to put “and any other such topics” but that is really a general meeting.  You should not really be discussing it at all.  This is true in general under new business.  You may have a new idea, but no taking final action, “I would like to put on the agenda that we should be doing x, I would like to have a report on y.”

Emergency sessions may be held if public health or safety is being threatened, and 2/3 must vote.  Any time you take away the rights of members, you need 2/3.  Same for open meetings.

Citizens may request a mailing list and be charged a reasonable fee.  Media may not be charged.

Minutes must be kept of all meetings and must be kept for review and copying.

Freedom of Information Act is the regulation under which I can request information but the public body can request fees.

Draft minutes must be available for public inspection from 8 business days, approved minutes within 5 business days from which they are approved.   Must show both the original entry and the correction.  What they do more often is to do backspace-delete.  You cannot actually do that on public body minutes.  You must show what the

[Twomey] Do they need to be put online or just available?

[Siewert] Many communities do put it out as draft online.

[Mueller] For how long do organizations hold minutes?

[Siewert] For open minutes, forever.  There are beautiful systems for cataloging and indexing.  I have, if you haven’t noticed, incredible admiration for clerks.

With six exceptions, all meetings must be held in open session.  The easiest way is to hold all openly.

You can get into so much trouble so fast that it is desirable to try to begin by doing everything openly.

Even where there is closed session, you must vote publicly to call it.

[Baker] In the motion you must say what you are going to talk about, right.

[Siewert] Yes, you must say what you are going to talk about and only that.  It is helpful to have somebody always to say …

1.  If requested by the named person to consider dismissal, suspension or disciplining of, or hear of complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer or employee.

The person who you are going to discuss has the right to say, “I want it in closed session.”

One you allow it to be an open session, the person cannot change his/her mind.

[Butters] What if the governmental organization wants it to be private?

[Siewert] That is not what the law says.  There are times when council can say

[Twomey] What if the person does not know they are being discussed?

[Siewert] You have to say why you are going into closed session.  Everyone has grievance procedures.  You would have right to know.  You cannot just go into closed session and decide to discuss somebody who has not been informed.

[Mueller] A person would have been warned ahead of time.

2. For strategy and negotiation connected with negotiation of collective bargaining agreement if

You cannot just go into closed session to discuss labor issues in general.  One of the things about closed session is that you are not supposed to talk about what happens there.  In the southern part of the state, the council said, you can give them 1% and go to 2% if need be and raised the cost.  One person revealed it and was later sued for the cost, though it was not acted on legally.

3. To consider purchase or lease of real property, up to the time that the option to purchase or lease is obtained.

[Siewert] That is because if you want to purchase property, you do not want everybody to know.

Note that each time, you have to go back into open session and tell what you are going to do.  If you want to fire the city manager, you have to do it in open session.  There will be a day when somebody will move “I move we purchase the property” which must be in open session.

4. To consult with an attorney with regard to specific pending legislation and only if an open meeting would have a detrimental effect on the position.  You cannot meet until somebody actually files a lawsuit.

5. To review or consider application for employment if the candidate requests that it be confidential.  Candidates may request confidentiality until the point of the process.  Interview by a public body must be held in a public meeting.  Once you get down to the final candidates, those must be held in an open meeting.

6. To consider material exempt from discussion by state and federal statute, such as bonding issues and some other questions.

[Siewert] You must call a closed session from an open meeting.  A 2/3 roll call vote is required, except for discipline, personnel application which require only a majority vote.  The purpose for calling the closed session must be in the minute of the meeting.  Once you go there, that is all you can talk about.

Normally one of the members of the public body moves to return to open session. That can be very informal.

[Landry] It is their responsibility to call the meeting back into order.

[Siewert] What they should do is to call for a closed session after adjournment so that nobody has to sit and wait.  “I move that when we adjourn we adjourn to go into closed session.”  That is a courtesy they should be taking.  Sometimes it is necessary to have a closed meeting in the midst of an open meeting, but not as often as you might think.

If you do not intend to come back, adjourn to go into closed session.  But then once you adjourn, you cannot come back.

Minutes of a closed session.  The open meetings act requires that a separate set of minutes.  That includes date, time, place, members present, and topic of discussion.  Sometimes “if direction was given” can also be included.  The only ones who can see them are those who were.  The minutes can only be disclosed if required by court action.

The minutes may be destroyed one year and one day after the approval of the regular minutes of the minutes at which the closed meeting were approved.  This is standard practice and most do not approve them.

Is it a meeting? If email is used for substantive discussion, then it may be considered a meeting.  Did they passively receive emails or did they actively exchange of emails showing an intent to deliberate.

When you look at the open meetings act, the word subcommittee is in there.  Sometimes they say “let’s appoint a sub-quorum committee” but that does not exempt them because it is in the act.

Committees and subcommitees must follow the act unless it is for an action of tribute or memorial.

[Twomey] What do we do when a fourth person comes to meetings?

[Siewert] The new MASB is not as good as it has been in the past, but…  If the non-committee member can come and not say anything.

[Pfleger] Can the “chance member” say anything?

[Siewert] Elected officials don’t have two hats anymore.  They don’t have the ability to say “I’m not a private citizen”.  In one event a member of a council came to a committee meeting and asked a question.

A board may want to add a disclaimer that they board members may attend, but that they are only there as observers and not for the purpose of deliberating.

Why not just post all of them as if they are full meeting?  Then every council member who did not attend the meeting would be listed as “absent.”

[Deegan-Krause] What about a committee meeting in closed session?  Can another member show up?

[Siewert] That would be a problem.  But I am not familiar with sub-quorum bodies that meet in closed session.  That would be unusual.

Committees that contain no members of the public body can be subject to the open meetings act on appointed committees.  Elected or appointed.

Even if there is not a quorum of a public body.  A citizens committee do discuss whether to build a new library would still be responsible for following the open meetings act.

[Butters]  Doesn’t the governor have a committee like that that claims not to have to follow the open meetings act?

[Siewert] I told them not to do it but they did it anyway.

Multiple sub-quorum committees.  Construct quorum violates the open meetings act.  Sometimes what you think is alright isn’t.  You think you are avoiding it but you aren’t really.

It is best to do it in the open unless it meets one of the

Suits may be brought.  Those who bring them may be paid court costs and attorney fees and the act may be invalidated. It must happen within 60 days of the approval of the minutes.  An act may be redone if done improperly.

Criminal misdemeanor penalties against those who intentionally violate the act.  They can also be subject to personal liability, court costs and attorney’s fees.  One of the best known is the city of Vassar.  The process of calling the meetings act was correct, but what they were discussing was not.   One of six members wanted to keep the meeting open.

Questions:

What did you have in your mind that I did not cover?

[Van der Weele] : What I gleaned today is how it protects the elected official if done right.  It protects them and the integrity their work.

[Siewert] If you get charged with an open meetings act violation, that lasts.  Sometimes you get charged and the court says no, but you still have that feeling.  Lots of communities are very careful with the OMA.  They say “the last thing we need is for somebody to question what we are doing.”

[Butters] When I was first trained how to be a reporter, one thing I remember was a card, a cheat sheet, that had to do with challenging a governmental body at the time.  Often we are challenging in retrospect.  Have you heard of anything like that for Michigan?

[Siewert] I have not, but I like it.  People do stand up and do what you are mentioning.

[Butters] What is an appropriate response on the part of the governmental body in a case where there are problems?

[Siewert] Pause.  Ask an attorney.

There was an example.  A city council can go out hand have drinks, go to conferences.  But in one case, four city council members decided to divide up the planning board members and call them to do this.  They had been deliberating toward a decision.  If any one of them individually had called planning board member, that would have been all right.  The question of splitting up the names had a lot of effect.

[Farrah] To whom does this act apply?

[Siewert] Governments are different from non-profits and it is important to understand the difference [followed by lengthy explanation]

[O’Donnell] Once the rules are written, can you apply them differently to different citizens?

[Siewert] No.  They must be applied evenly….

Across the state there is a strong bias toward increasing participation.  More communities ask me about how to facilitate conversation than about how to curtail it.  The question about “does it make the meetings longer” is a good one but they usually don’t.  And the other question is “will the public get out of control”.  But, let’s face it, the public does not get out of control.  Two minutes is pretty much enough for everybody.

[Van der Weele] Can a public body judge whether a person is suitable for speaking based on whether they are redundant, repetitive, etc.

[Siewert] It does say you can have rules for the conduct of public business.  In my community there are rules about no swearing, no calling out.  There are rules for setting a more civil tone.  But by the time something has been demonstrated as redundant or repetitive, it has already been said.

[Butters] At what point is it … whose responsibility is it to make sure that everyone knows the rules.

[Siewert] Many groups have rules that they hand out at the door.

One of the characteristics of public disputes is that we do have a few of the same people who come to meetings all the time.  The rest of them are therefore the first time and do not know the rules.

[Bellamy] Is it appropriate to say that the comments can’t be repetitive, or have a hostile tone?

[Siewert] It’s kind of useless.  Because everybody thinks what they have to say is non-repetitive and not-hostile.  It is useful to alternate pros and cons if possible, to say “we have had so may speak in favor” so “who wants to speak opposed.”

[Van der Weele] Is there anything that would put a limit on public comments?

[Baker] In Ferndale, we let 30 minutes at the beginning and let the other comments happen at the end.

[Siewert] If somebody is going to get up and malign an employee, that is wrong.  That can be gaveled right away.

[Van der Weele] What if it applies to the person? What is legitimate for a board to say, stop right there.

[Siewert] Personal threat…

[Pfleger] We have said that if you have an issue with a teacher or staff, we insist that it be held in private so that the person can deal with it in private.

[Siewert] The mood of the elected body always has to be “We want to hear what you have to say.”  Certainly that is true of the community colleges these days.  People come with focuses on training.  In cities we often hear very good suggestions for the use of parks and traffic.

[Landry] When in our past incident, couldn’t the entire board speak up?  Did everybody on the board have a right to speak or was it only the chair?  Some members of the board may have felt they did not have a right to speak.

[Siewert] No, everybody had a right to call that at the time.  If nobody else spoke, I would say that was an awfully calm board.  I never had a board that way.

[Butters] Just to clarify, she was not told that she could not speak, she was told she should wait.

[Siewert]  This is a question where you want to ask are there are adopted rules that are clear to everyone.  If there is the 30-minute rule, that’s ok.  If it is not clear, then that is unfair.  You need to say it or have it written.  The problem is the playing the game and not knowing what the rules are.

So go forth and be public!

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