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As most township officials know, there are numerous requirements to consider in complying with the Open Meetings Act (OMA). Many of the compliance requirements have become common knowledge among township officials. However, some widely accepted beliefs regarding the OMA are nothing more than myth! The following “myths” have been inspired by actual events and Court decisions relating to alleged OMA violations that actually turned out to be permitted activities.

Myth: Any action that violates the OMA will be invalidated.

The Board violated the OMA in the process of hiring its new fire chief by closing some meetings in violation of the OMA. The Court found that OMA violations occurred. However, the plaintiff also asked the Court to invalidate the hiring of the new fire chief that occurred after the OMA violations.

The Board agreed that it violated the OMA by closing some of the meetings. However, the Board maintained that the hiring should be upheld regardless of the OMA violation, since the violation did not “impair the rights of the public.”

Truth: The Court agreed with the Board. Relying on a previous case, Morrison v East Lansing, 255 Mich App 505, 520; 660 NW2d 395 (2003), the Court found that a public body’s decision may be invalidated for non-compliance with OMA only if the violation has “impaired the rights of the public.” The Court said that the rights of the public were not impaired in this case because, along with the non-compliant closed sessions that were held regarding the hiring of the fire chief, there were also open meetings at which the public could voice its concerns. Speicher v Columbia Township, Court of Appeals Opinion No. 313158 (Feb 25, 2014).

But: Even though the decision was not invalidated, the Court could grant other relief for violating the OMA, including damages and attorney fees.

Myth: We can close a meeting to discuss an employee only if he or she requests a closed session.

A Board went into a closed session to discuss a possible mental and physical evaluation of an employee. The employee argued that the Board violated the OMA because she never requested a closed session.

The Board cited OMA, which allows a public body to meet in closed session to consider material exempt from discussion or disclosure by state or federal law. The Board claimed that the topic of discussion, the employee’s medical exam, was exempt under the Americans with Disabilities Act, FOIA and HIPAA.

Truth: The Court found the subject matter of the meeting to be confidential and exempt under state and federal law. Therefore, pursuant to the OMA, the Board was well within its authority to conduct a closed session. Filas v Dearborn Hts School District, Court of Appeals Opinion No. 308395 (April 16, 2013).

But: Remember that the Board had another specific statutory basis for going into a closed session. Without that alternate basis, a violation may have been found.

Myth: A closed session to discuss legal issues with our attorney is illegal without actual pending litigation.

A Board went into a closed session with its attorney to discuss the attorney’s written legal opinion, but litigation was not pending. The plaintiff argued that this violated the OMA, which provides a Board can meet in closed session with its attorney to discuss trial or settlement strategy in connection with specific pending litigation where an open meeting could cause the Township an adverse financial effect..

The Board argued that the OMA allows a public body to meet in closed session to consider material exempt from discussion or disclosure by another statute, and the FOIA exempts written legal opinions from disclosure, so the Board can go into a closed session to discuss its attorney’s confidential written legal opinion.

Truth: The Court found the subject matter of the meeting to be confidential and exempt under the FOIA, which protects documents subject to the attorney-client privilege, so the Board could meet in closed session to discuss the written opinion without violating the OMA. Booth Newspapers v Regents of Univ of Michigan, 93 Mich App 100; 286 NW2d 55 (1979).

But: Once the Board goes into a closed session to discuss the written legal opinion, it cannot discuss other matters that do not directly involve a written legal opinion without violating the OMA. Booth Newspapers v Wyoming City Council, 168 Mich App 459; 425 NW2d 695 (1988).

Myth: Board members are not permitted to address the Board during the public comment period.

A Board member claimed that the Board violated the OMA because he was interrupted while speaking during the public comment segment of a public meeting.

The Board contended that the Board member was fully permitted to speak during the public comment period, so there was no violation of the OMA

Truth: Although the Court ultimately found that the Board member was not interrupted in giving his public comment, the Court did acknowledge the right of the Board member to speak during the public comment portion of the meeting. The OMA simply provides that “a person shall be permitted to address a meeting of a public body under rules established and recorded by the public body,” and a Board member is a “person.” Higgs v Delta College Bd of Trustees, Court of Appeals Opinion No. 302767 (April 17, 2012).

Myth: Emailing all fellow Board members is a violation of the OMA.

It was alleged that a Board member violated the OMA by sending an email to all other Board members regarding a present issue.  The Board contended that the email was not intended to solicit a decision from the other Board members, but rather was an informal canvass, and therefore was not in violation of the OMA.

Truth: The Court found that the communication was not an improper request for a decision, but rather was an informal canvass. The Court pointed to the decision in St. Aubin v Ishpeming City Council, 197 Mich App 100, 103 (1992), in which such a distinction was drawn. An informal canvass is permissible as long as it does not arise to the level of an actual request for a decision. Deputy Sheriffs Assoc v Michigan, Court of Appeals Opinion No. 300936 (March 26, 2013).

But: Watch out for too much of a “good thing.” Just as a harmless “informal canvass” can turn into a prohibited “round robin” when it is abused, repeated exchanges of emails that carbon copy the entire Board can quickly turn into a de facto “meeting.” One way to address this is to adopt a technology policy that sensitizes Board members to the potential concerns with the excessive use of email. Also consider sending such emails to other Board members via a “bcc” so that replies will only go to you and not to all Board members.

Myth: Attorney fees are awarded for ANY violation of the OMA.

A violation of the OMA was deemed to occur in an action seeking to have a decision invalidated. However, the party filing suit also requested attorney fees.

The Board argued that attorney fees, pursuant to the OMA, are only awarded when there is a claim to compel compliance with the OMA or a claim against a public official for an intentional violation of the OMA. In this case, the Board argued, the relief sought was to invalidate a decision made by the public body. Therefore, the OMA did not provide attorney fees.

Truth: The Court agreed with the Board, noting that the specific language of the OMA did not provide for attorney fees for the particular relief sought. However, the Court also noted that relief has been granted previously for all claims, and therefore requested a special review of such previous rulings. This is a myth even believed by some judges and attorneys! Speicher v Columbia Township, 303 Mich App 475; 843 NW2d 770 (2013).

Myth: Once we violate the OMA, we can’t avoid liability for the violation.

Truth: If the Township discovers that it has violated the OMA, it can correct the violation by “reenacting” the meeting where the violation occurred. The “reenactment” process requires raising the matter again in a later meeting, correcting the violation by discussing the matter in an open session and taking another vote on the matter.

Bill Fahey wfahey@fsbrlaw.com

Steve Koski skoski@fsbrlaw.com

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