Governor Issues Directives Regarding Open Meetings Act

On Friday, March 13, Governor Gretchen Whitmer issued an executive directive (the “Directive”) related to Michigan’s Open Meetings Act (“OMA”), MCL 15.261 et seq. The Directive, No. 2020-2, sets forth three specific directives for state agencies, boards, and commissions to conduct public meetings under the OMA during the COVID-19 public health emergency. According to the Governor, the Directive was issued to “take steps to limit in-person contact, particularly in the context of large groups” while allowing substantial compliance with the OMA by using technology in a way that permits meaningful public interaction and input during the public meeting.

Background

In her preamble to the Directive, the Governor cited the operating principals of the OMA:

• That all meetings [of public bodies] be open to the public and held in a place available to the general public; and
• That all decisions of a public body and deliberations of a public body must take place at a meeting open to the public.

Further, the Governor observed that the OMA requires that, as a general rule, all persons shall be permitted to attend any meeting and shall be permitted to address a meeting of a public body.

The Governor goes on to state that “in conducting its business in this time of emergency, state government must ensure that it preserves” the objectives of transparency and accountability in decision making that are embodied in the OMA in a way that does not unduly compromise the public health.

Three directives are then issued:

1. All public bodies of departments and agencies of the State…must, to the extent practical, consider postponing public meetings and/or agenda items that may be deferred until a later time;
2. All public bodies subject to the OMA that must continue to meet must do so by means sufficient to enable meaningful access and communication for all participants. Participation by remote access technology, including conference calling, real-time streaming or other platforms is acceptable, and sufficient to form a quorum, so long as public access and participation are preserved.
3. Public notice of the time and date of each meeting of a public body subject to the OMA must be given in the manner required by the OMA, which includes the publication of notice on the public body’s website. The notice must include sufficient information such that the public’s right to address a meeting of the public body is preserved.

Discussion

As an initial matter, whether virtual meetings in which a body constituting either less than a quorum or a quorum, may meet through remote access remains unsettled under Michigan law. Over 40 years ago, before the technological advances common in today’s society, the Michigan Attorney General first opined that phone call conference meetings were not permissible under the OMA when members of the public were excluded from being heard or from observing the meetings. 1977 WL 32566. However, the Michigan Court of Appeals later opined that, under the OMA, the Department of Social Services could hold contested case hearings by teleconferencing with speakerphones as long as all interested persons were allowed to participate. Goode v. Department of Social Services,143 Mich App 756, (1985). Subsequently, in 1995, the Attorney General effectively rescinded its early guidance by specifically condoning virtual meetings, finding that “the use of interactive television enhances the public's access to the meetings.” 1995 WL 59955. Nevertheless, neither the Court of Appeals nor the Supreme Court has broadly pronounced that using modern technology that permits meaningful public participation complies with the OMA.

The OMA Directive does not expressly apply to local units of governments, including school districts, although the argument could be made that school districts, as well as municipalities, are bound as “agencies” of the State. At the very least, however, the Directive constitutes a practical guide to conducting government business during these difficult times. As a threshold issue, school districts would be prudent to indefinitely defer non-critical issues to a later date once the health emergency is lifted. For those items that cannot be deferred, school districts could choose to take advantage of the virtual participation guidelines detailed in the Directive. Relying on the Court of Appeals' decision in Goode, the Directive, and the 1995 OAG letter, school districts should be able to articulate substantial compliance with the OMA. Moreover, if a critical decision made using the virtual participation guidelines is later challenged in litigation, a school district could simply re-enact the decision at the next meeting that is held in-person.

For example, administrator non-renewals under MCL 380.1229 have specific timelines that must be met for purposes of educational continuity. Some school districts must also undertake critical board action, such as student discipline and budget matters, in limited, set timelines that could expire while public buildings are closed.

The Directive states that to the extent critical business must be conducted notwithstanding the closure of public buildings, meetings may be convened virtually provided the public is given specific notice and can participate as well as observe the process.

To illustrate the point: suppose a school board was meeting to provide notice that it is considering non-renewal of an administrator under MCL 380.1229. The school board would post the meeting on its website and the physical places where notices are posted, notifying members of the public of the date and time of the meeting as well as the details of how access may be gained, such as the internet link to a video-conferencing website where the meeting will be live cast, as well as the method of collecting public comment, whether by chat message which would be read out loud to the virtually-assembled board or by input into the conferencing application.

Conclusion

The Directive is not an amendment to the Open Meetings Act. However, it seeks to balance the need to conduct government business transparently with the exigencies of the current emergency.