Requirement of Michigan Public Bodies to Hold Public Meetings In-Person Under the OMA Suspended

Access to state and local government meetings has been a hallmark of American democracy for most of our country’s history. All states have enacted open meetings laws that generally require municipalities and local agencies to provide advance notice to the public of meetings held by commissions, boards, tribunals, and councils. This includes a broad spectrum of entities, such as unemployment commissions, tax tribunals, and school boards. These statutes permit any member of the public to physically attend (but not necessarily participate) and to provide access to minutes, transcripts, or recordings of the meetings upon request at little or no cost.

In Michigan, the Open Meetings Act (OMA) (MCL 15.261 et. seq.) governs these types of public bodies holding public meetings (i.e. not “closed sessions”) in a “place available to the general public.” In other words, an actual physical space and not one that is virtual or otherwise inaccessible. Of course, during this pandemic, in-person gatherings of any type have become a difficult proposition that may threaten the health and safety of many citizens.

Violations of the OMA can nevertheless have steep consequences. The attorney general, county prosecutor, or other affected persons could file a civil action in circuit court and seek a preliminary injunction to compel compliance by the public body or enjoin further non-compliance. If they prevail, the statute mandates the recovery of attorneys’ fees and costs for reimbursement purposes.

The Governor’s Executive Orders have addressed issues such as these but have also been legally challenged in the Court of Claims in Lansing by the Republican controlled legislature. Legal challenges have questioned the exercise of the Governor’s authority under both the Emergency Management Act and Emergency Powers of Governor Act to issue these various Executive Orders.

Recently, rulings by the Michigan Supreme Court effectively terminated the Governor’s Executive Orders and appeared to have ended the ability of public bodies in Michigan to continue to meet virtually. The legislature said its ruling was effective immediately and that left the Governor’s Orders with “no continuing legal effect.” As a result, several cities, including Lansing and Flint, had canceled their electronic meetings. However, on October 21, 2020, Senate Bill 1108 was passed and signed into law by the Governor. The Bill will continue the ability of municipalities and other agencies to conduct meetings virtually through December 31, 2021.

Because the OMA doesn’t currently make practical sense for in-person meetings, the relevant Executive Orders, bolstered by the recently enacted Senate Bill, were issued to provide an interim and alternative means to conduct government business.

More specifically, under Executive Order 2020-75, public bodies could remotely hold open virtual public meetings by electronic means such as on the Zoom internet platform. Paragraph 1(a) of that Order states:

A meeting of a public body may be held electronically, including by telephonic conferencing or video conferencing, in a manner in which both the general public and the members of the public body may participate by electronic means.

Also, per paragraph five of the Order, members of the public could attend meetings according to rules specifically established by local municipalities and agencies:

A person shall be permitted to address a meeting of a public body under rules established and recorded by the public body.

Thus, Executive Order 2020-75 superseded the Open Meetings Act requirements of meetings to be held in a physical place. It also allowed state and local public bodies to make their own specific arrangements regarding procedures for notifying and holding meetings and hearings. However, this Order expired on July 31, 2020 and was then rescinded.

To extend the relief sought due to the ongoing pandemic, on July 17, 2020, Order 2020-154 was issued allowing for the continuance of remote meetings by public bodies. Due to the enactment of Senate Bill 1108, this Order will most likely stay in effect during the current states of emergency and disaster and possibly through the end of 2021.

John D. Gwyn is an attorney in our Livonia office where he focuses his practice on municipal law, as well as the representation of community associations, management companies and developers with a particular emphasis on real estate and commercial litigation. He has handled many types of community association related matters, including assessment collections, lien foreclosures, bylaw violations, civil rights defense and creditor bankruptcy matters.

Mr. Gwyn has gained experience in community association law over the years through his representation of condominium and homeowners associations, as well as individual homeowners, in matters involving real estate, contract, and construction defect litigation issues. His extensive litigation and transactional background provides him with the experience necessary to handle even the most complex legal issues that neighborhood associations may encounter.

He may be reached at (734) 261-2400 or jgwyn@cmda-law.com.