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Like many aspects of township law, developments in technology and the prevalent use of email and cellphones has made compliance with the OMA increasingly complex. Typically, these developments occur in court cases, which can involve differing opinion as to how this statute applies to new technology. This E-Letter summarizes the significant OMA decisions regarding these new developments during the last year.

Email Exchanges with a Quorum of the Public Body Violate OMA

Cell phone and email use remains a paramount means of communicating among township staff and board members. We have previously expressed concern with text messages or emails sent on personal devices being subject to public disclosure under the Freedom of Information Act (FOIA) in some circumstances.  This issue came to the forefront in a 2010 Michigan Court of Appeals decision. The Court of Appeals held that emails among public employees discussing personal matters were not subject to disclosure under the FOIA even though they were sent using a public email system. Howell Education Association v Howell Board of Education, Michigan Court of Appeals (2010). But under the holding in that case, the converse could also likely be true: Written communications sent in furtherance of a public purpose would be subject to disclosure, even if they were sent on personal systems.

More recent news has even involved public figures in the federal government, confirming the latter conclusion. Hillary Clinton sent thousands of emails using a private email server during her position as the United States Secretary of State. Those emails included official State Department emails. As a result, the emails addressing official public matters on her private server were subject to disclosure. The issue unfolded into a significant controversy in 2016. Those emails have now been archived and can be searched on WikiLeaks. Most can agree that an email believed to be private would be embarrassing to then disclose to the public.

Under the OMA, board members may not exchange emails deliberating or deciding a matter of public concern. “Deliberations” and decisions must occur at meetings open to the public. Even though the OMA provides for exceptions to meet in closed session, the public body may not make any decisions within the closed session. A public meeting must be reconvened in open session prior to a vote on any decisions.

Emails can create a violation under the OMA, since an exchange of emails can be considered a private meeting. A meeting consists of (1) a quorum, (2) deliberation or reaching a decision, and (3) on a matter of public policy. To comply with the OMA, the meeting must be open to the public. As one may conclude, emails with a quorum of members that discuss matters of the township are not available to the public (either to observe or to provide input). Therefore, such exchanges may not occur through private email, but must occur before the public. In this context, “deliberation” is not defined in the OMA. The courts, however, have defined it as “the act of carefully considering issues and options before making a decision or taking some action,” and as analyzing, exchanging views, weighing evidence or debating something.

Under this definition of a meeting, it is important that emails sent to board members are not being used as a means to reply to all of the recipients.

Some members of a public body also believe that by avoiding a quorum of board members on any email, the OMA is not violated. Michigan courts have rejected this notion, and are suspicious of patterns of behavior that appear intentionally designed to thwart the requirements of the OMA. This has been labeled as a “constructive quorum,” and is found where the facts indicate that board members are intentionally forming sub-quorum groups for the purpose of deliberating and making actual decisions on public policy. E-mail exchanges of sub-quorum groups found to be a constructive quorum would violate the OMA.

These exchanges can even happen unintentionally. A sub-quorum of members may exchange a discussion through email. That email string, however, can then be forwarded to another member, creating the appearance of a round robin type discussion. Markel v Mackley, Michigan Court of Appeals (2016).

Exchanges with Each Member of the Public Body May Not Violate OMA

As discussed above, the courts are suspicious of exchanges among board members comprising a sub-quorum of a public body when the facts illustrate it is an attempt to subvert the OMA. So, what occurs when a single individual discusses a decision with members of the body independent of each other? The conclusion rests in part on whether that single individual is a member of the board, and in part on whether the discussion is an attempt to subvert the OMA. In many cases where there is no intent to avoid the OMA, such discussions can be considered appropriate.

This is especially true in situations where a township manager, superintendent or other director who has the capacity and authority to make decisions on behalf of the township discuss township issues with each board member independently. According to the Court of Appeals, it is not improper for such communications to occur where there is no evidence that the employee is attempting to subvert the OMA. As the Court pointed out, since the public body is not making a decision, and the individual member of the staff has the authority to reach a decision and does make that decision, the OMA is not applicable.

Of course, this has its limits. A township board or other public body may still be found liable of violating the OMA, if a non-board member is being used to exchange opinions, discussion, and debate among the board members while meeting individually. Bell v Buchanan Community Schools, Michigan Court of Appeals (2016).

No Injunctive Relief is Warranted Under the OMA Where There is No Pattern of Email Exchanges Violating the Act

When a township violates the OMA, an individual may bring one or more of three claims under the OMA: (1) a claim to invalidate a decision made at a public meeting; (2) a claim for injunctive relief to compel compliance with the OMA; and/or (3) a claim against a public official for “intentional” violations. Leemreis v Sherman Township, Michigan Court of Appeals (2007). This has long been the case, but the Court of Appeals clarified previous rulings to indicate that a claim for declaratory relief does not exist under the OMA.

Declaratory relief is a claim made against a public body to seek an order from a court that a certain action(s) of the public body does not comply with the OMA. For instance, in 2014, a school board was in the process of hiring a new employee. The school board exchanged e-mails regarding specific contract terms, resulting in a final offer. Since the OMA requires that all meetings of a public body must be open to the public and all deliberations of a quorum of the public body must occur in open meetings, a court declared that the school board had violated the OMA by exchanging the emails (see previous discussion). The plaintiff also sought an injunction prohibiting the school board from exchanging such emails in the future. The court declined to grant injunctive relief since there was insufficient evidence that the school board members would violate the OMA in the future.

The Court of Appeals reversed and remanded with instructions to dismiss the lawsuit. In effect, this allowed the school board to avoid the OMA violation. Significantly, however, the Court of Appeals’ message was not to condone the exchange of e-mails among a quorum of the school board. Rather, the Court of Appeals was making clear that a plaintiff may only seek the three claims provided for under the OMA.

For townships, this means that future complaints from plaintiffs will be targeted toward: (1) invalidating a decision made by the board, (2) seeking an injunction to prevent future conduct from violating the OMA, or (3) claiming that an official committed intentional violations. Thus, a practice of exchanging emails among a quorum of board members may arise to a sufficient pattern of behavior that a court would enjoin a township from such practices. This could result in the court awarding attorney’s fees to the prevailing party. This decision reminds public bodies to be mindful of deliberation through the exchange of email or text messages. Citizens for a Better Algonac Community Schools v Algonac Community Schools, Michigan Court of Appeals (2016).

Board Members Must be Properly Serving on the Public Body

Many officials and members of the public identify the township board as a public body. This is accurate. What is not often contemplated is whether any individual on the public body is properly appointed to, or elected to serve on that body. For instance, the members who comprise the township board must meet various election law requirements and be approved by a majority of the voters. Other public bodies that deliberate and decide public matters impacting the township are comprised of members that are appointed, typically by the township board.

The appointment of those members can be controlled by statute and even bylaws adopted by the township. Make sure that each member of the board or commission has been properly qualified so that public body can make valid decisions.

For instance, if a public body has a member serving that previously resigned, but is still attending as a member of the board, that individual cannot vote on matters before the board and cannot be counted as part of the quorum. Although this may seem odd, a similar issue arose in a case decided by the Michigan Court of Appeals.  The member serving on a commission had resigned three years prior to making a decision that was challenged in court. The Court of Appeals found that the decision of the member who had resigned could not be counted. The member also did not count toward creating a quorum of the public body. Carroll v Montmorency County Commission on Aging, Michigan Court of Appeals (2016).

We Can Help

The lawyers of Fahey Schultz Burzych Rhodes PLC have been helping townships comply with FOIA and OMA issues since those laws took effect over 35 years ago. We work with Michigan townships to develop OMA procedures and responses that meet all applicable legal requirements. Our lawyers have successfully guided many townships through OMA litigation. We also offer legal counseling to prevent litigation or enhance litigation outcomes. Please contact us if you need any assistance.

— Christopher S. Patterson cpatterson@fsbrlaw.com

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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law, and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.