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Top Ten Questions Newly-Elected Officials Have

In November of last year, many new township board members joined the municipal community as supervisors, treasurers, clerks, and trustees. The duties and obligations of each elected office vary substantially. Even so, survey results and trending data from these new officials demonstrate a consistent interest in learning the basics in ten areas of township governance. This E-Letter addresses those ten areas generally: including when township officials are personally liable, how to manage meetings, and the importance of township policies. For further detail, the E-letter also points to previous e-letters addressing some of these topics in more detail.

What is the difference between a charter law township and a general law township?

All townships begin as general law townships, and only become a charter township following incorporation.  A general law township having a minimum population of 2,000 inhabitants is authorized to adopt the Charter Township Act and incorporate as a charter township.  Charter township status was created to provide additional powers in the administration of larger communities.

General law townships and charter townships are similar in their structure – both place legislative and administrative authority with a township board comprised of a supervisor, clerk, and a treasurer. Charter townships also have four trustees on the board, while general law townships have between two and four trustees.  A general law township board is required to meet once every three months and at additional times as necessary, while the township board of a charter township is required to meet at least once a month.

In addition to these structural differences, charter townships have greater taxing authority than general law townships, while general law townships are subject to a less complex process for the passage of ordinances.  Some of the advantages of becoming a charter township are discussed in our February 2008 E-Letter (CLICK HERE).

What are the basics to managing a township board meeting?

Managing township meetings effectively is essential to ensuring good governance. In general, this is accomplished through the adoption of some form of parliamentary procedure, the most common of which is Robert’s Rules of Order. It is important to note, however, that Robert’s Rules are not required unless previously adopted by the township in an ordinance or resolution. Many townships do not have a formal adopted policy on parliamentary procedure, and yet effectively and efficiently conduct the township’s business at the monthly board meetings. The procedure used during the course of the meeting has typically been developed over time.

Generally, the process for properly managing a board meeting begins long before the township actually meets. Prior to the meeting, township staff or an official should assemble an agenda for that meeting, along with any supporting documentation. This “board packet” should be distributed to the members of the township board for review, and each member should develop a list of questions or concerns that they have on each issue before the board meeting takes place.

The meeting itself should follow the township’s procedures (whether formal or informal), and should be a tightly focused affair. Discussion on an agenda item should be limited to that particular issue, and members who go off-topic should be reminded of the topic at hand. Each member should be given an equal opportunity to speak, free of interruption from other board members. Only one topic should be discussed at any given time. Members of the public should not speak during this time, unless asked a direct question from a board member.

If an item requires action to be taken (as opposed to reports that are often given by members of the board), a board member should make a motion on the issue being discussed. This motion can take a variety of forms, and can be in favor of, or in opposition to, that agenda item. The board should then vote on the issue. After a matter has been settled, the board should proceed to the next agenda item without additional commentary or discussion.

The board must also allow for a period of public comment, and should establish rules for governing this time. Typically, these rules will state when public comment will occur (usually, but not always, at the end of a meeting), and the amount of time members of the public will be permitted to speak. These rules must be enforced equally.

The key to an efficient and effective meeting is to be adequately prepared, stay on topic, and to establish and obey rules on how business before the township board is conducted. Following these steps will ensure that the board’s decisions are not only fair, but considerate of both the board’s and the public’s time.

When is an elected official personally liable when voting on a board decision?

An elected official is generally immune from tort liability when he or she is acting within the scope of his or her judicial, legislative, or executive authority.  For township board members, this immunity extends to all voting at board meetings, and is applicable even if when a tort is intentionally committed.  Township board members may be personally liable for damages, however, if they breach their fiduciary duty to the public. Similar to an agent for a corporation or a trustee of an estate, a township board member’s fiduciary duties require “fair dealings and disinterested conduct.” At the most basic level, this includes a duty of loyalty and a duty of care.

The duty of loyalty prohibits self-dealing and voting on decisions where a member will personally gain from the outcome.  The duty of care includes, but is not limited to, fulfilling the statutory duties of the member’s specific office (clerk, treasurer, and supervisor), attending meetings and casting informed votes on all decisions before the board.

Breach of a board member’s fiduciary duties can expose the member and the township to significant liability. A breach of a duty may require that certain self-interested transactions be rescinded, or that the member disqualify himself or herself from voting on the issue in the first place.  Under some circumstances, a township suffering a financial loss from a board member’s breach can seek recovery from that member’s bond.

An exhaustive discussion on ethical considerations for township officials was also addressed in our April 2015 E-Letter (CLICK HERE).

What is the value in township policies?

Procedures are essential to the fair and efficient operation of government. Generally, procedures set the rules by which the township operates, and can govern a variety of topics ranging from how a meeting is run to the rules that apply to the township’s employees. Without these procedures, a township runs the risk of having its decisions challenged as being arbitrary or unfair.

Take, for instance, procedures regarding public comment at township board meetings. Without procedures, members of the public would be able to speak on an issue for whatever length of time the board permits. This could be a significant issue if the board begins to limit discussion on a controversial issue unexpectedly, or is perceived as only allowing citizens who support the board’s decisions to speak. There is no faster way to lose the public’s trust!

This is just one example of how important having established policies can be. Having policies (and strictly following those policies!) establishes the rules by which the township will conduct itself. This ensures that not only will members of the board be held accountable, but also that members of the public understand how to properly interact with their elected representatives.

How is the ordinance adoption process different between a non-zoning ordinance and a zoning ordinance?

Ordinances are adopted at township board meetings if a majority of board members vote in favor of adoption. Once an ordinance is adopted, it is recorded in the book of ordinances and a summary is published in a circulating newspaper.

For zoning ordinances, the planning commission first must hold a public hearing and receive comments from members of the public. The planning commission must publish notice of the hearing 15 days in advance, describing the proposed ordinance, the property it will effect, and the time and place where the hearing will be held. If fewer than 10 properties are effected, notice must be mailed to all land owners and occupants within 300 feet of the property. Comments received at the hearing must be submitted with the planning commission’s recommendations on the proposed zoning ordinance to the township board. The township board may then choose to disapprove the zoning ordinance, adopt it in its current form, or refer it back to the planning commission for further consideration. Additional public hearings will be held at the board’s discretion or at the request of a property owner.

Unlike zoning ordinances, non-zoning ordinances can be adopted without public hearings. Depending on whether the township is a general law township or charter township, the ordinance is introduced and adopted by the township board. Charter townships have the additional requirement of first introducing the ordinance, and then adopting it in a subsequent meeting. Publication requirements must then be met after adoption (except for charter townships who must also meet public requirements after the first reading and after adoption).

What is the Open Meetings Act?

Several paragraphs cannot fully address the Opening Meetings Act (OMA). But, for those newly elected officials that primarily worked in the private sector, it is an unfamiliar regulation that controls how boards make decisions. In general terms, the OMA requires a “public body” to hold “meetings” open to the public. During the meetings, the members of the public body are permitted to “deliberat[e] toward or render[ ] a decision.” The OMA prohibits these deliberations and decisions from being made in secret.

There are numerous nuances with the OMA, including when discussions can occur in secret. These are identified as “closed sessions” in the Act, and are only permitted in the limited instances provided in the Act. There are also questions as to when a meeting is taking place, and when discussions among board members qualify as deliberations or decisions.

It is an important Act to understand as a newly-elected official. Compliance with the Act also builds trust with the community through the transparency required. An excellent starting point for any newly-elected official is to understand the Top Ten OMA Myths which were addressed in our November 2014 E-Letter (CLICK HERE).

What is the Freedom of Information Act?

The Freedom of Information Act (FOIA) works in conjunction with the OMA to create greater transparency in governmental operations and decisions. The fundamental goal is to foster trust and fairness with the public. Where the OMA fosters transparency by requiring deliberation and decisions to occur in open meetings, the FOIA does so by granting the public access to the records kept by the township.  By avoiding secret meetings under the OMA and allowing citizens to request public records under the FOIA, both work to harmonize the relationship between the township board and its constituents.

Recent changes in the FOIA required townships to adopt new policies and procedures to address requests for public records. With a concerted effort by the Michigan Townships Association, many townships in the state have adopted new policies and procedures that are consistent with state law. As a newly-elected official, reviewing these policies and procedures provides an in-depth explanation of the administrative aspect of complying with a FOIA request. Some of the complexities with FOIA are further addressed in our October 2014 E-letter (CLICK HERE).

What is zoning and is it necessary?

Zoning describes the regulation of land use by municipal government. The authority to enact zoning ordinances is delegated to municipalities by the state legislature, and is rooted in the police power of the state. Zoning ordinances are based off a comprehensive plan, and deal with harmonizing land uses to cause the least impact to one another. By enacting zoning ordinances, municipalities can address land use conflicts by segregating incompatible uses, increase municipal efficiency by rationally organizing land types, shape development in a way that best realizes economic changes, and create conditions in which important land uses can flourish.

A more thorough explanation of making valid zoning and land use decisions is available in our December 2008 E-Letter (CLICK HERE).

How are people appointed to the planning commission and the zoning board of appeals?

“In a municipality, the chief elected official shall appoint members of the planning commission, subject to approval by a majority vote of the members of the legislative body elected and serving.” MCL 125.3815. Generally, “[m]embers of a planning commission shall be qualified electors of the local unit of government,” and “1 member of the legislative body shall be appointed to the planning commission.” Id.

For the zoning board of appeals, “members . . . shall be appointed by majority vote of the members of the legislative body serving.” MCL 125.3601. In a township, “1 of the regular members of the zoning board of appeals shall be a member of the zoning commission, or of the planning commission if the planning commission is functioning as the zoning commission.” Id. “The remaining regular members of a zoning board of appeals . . . shall be selected from the electors of the local unit of government residing within the zoning jurisdiction of that local unit of government . . . .” Id.

How do townships deal with the new medical marihuana legislation?

Medical marihuana has become an increasingly complex issue for townships. Since 2008, medical marihuana use by authorized patients and caregivers has been permitted. But in 2016, the Medical Marihuana Facilities Licensing Act (“MMFLA”) was enacted. The MMFLA allows commercial medical marihuana facilities for the first time, but licenses and taxes them. The MMFLA clarifies some of the issues that arose under the previous act, and permits townships to choose whether they want commercial medical marihuana businesses within their borders, levy regulatory fees and receive a share of the taxes.

The MMFLA created five new licenses that will be regulated by the Department of Licensing and Regulatory Affairs: (1) growers; (2) processors; (3) secure transporters; (4) provisioning centers; and (5) safety compliance facilities.

Significantly, it is a township’s choice under Section 205 of the MMFLA as to whether these new facilities will be permitted in the township. To the extent that a township wants to authorize such facilities, it is provided explicit statutory authority to not only determine which type of license it will permit within the township’s jurisdiction, but also the number. The authorization of the type and number of licenses, as well as the conditions under which they will have to operate within the township, can be regulated with zoning and non-zoning ordinances.

You can find more background on the most recent legislation in our October 2016 E-Letter (CLICK HERE). As for the 2008 Act, general background and case law updates can also be found in our February 2014 E-Letter (CLICK HERE) and our March 2013 E-Letter (CLICK HERE).

— Fahey Schultz Burzych Rhodes PLC Attorneys

Click here for a PDF version of this publication.

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.

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