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The Open Meetings Act (“OMA”) allows townships to enter closed sessions based on exemptions provided in OMA. Recent Court of Appeals decisions make clear that townships must specifically state the legal exemption for entering closed session. Townships often learn information or receive recommendations during such closed sessions, which involves voting on that information after leaving the closed session. This may involve acting upon an attorney’s legal opinion, giving parameters to bargain a labor dispute, or negotiating the purchase of property. When acting after closed session, townships must also give additional information regarding what decision is being made and not simply adopt unidentified recommendations made during the closed session. But townships do have the ability to cure any issues involving a closed session by later ratifying the decision, even though it is not required. This E-Letter examines heightened requirements imposed on closed sessions, the balance between disclosure and transparency during litigation, and the opportunity for townships to cure any defects in their decisions through ratification.

TOWNSHIPS MUST INCLUDE THE BASIC SUBJECT MATTER OF A CLOSED SESSION

The Court of Appeals recently published a decision that imposes a higher, more specific requirement on public bodies seeking to go into closed session. OMA generally requires all meetings be open to the public. But a 2/3 roll call vote of the members that states the “purpose or purposes for calling the closed session” will permit a closed session involving any one of the topics listed in Section 8 of OMA. This decision by the Court is a reminder that the “purpose” for calling the closed session requires more than just restating the statutory language in OMA. Here, a local college board failed to name the specific litigation that allowed it to meet in closed session, which the Court determined was in error.

At a January 12, 2016 meeting, the Delta College Board of Trustees voted to go into closed session “for the purpose of discussing specific pending litigation with legal counsel” under the corresponding exception in OMA, MCL 15.268(e). Plaintiffs filed suit arguing that the board of trustees violated OMA by failing to name the specific litigation it planned to discuss.

The Court emphasized that the purpose of OMA is to promote public access to decision making and promote a better understanding of the issues before local governments. Generally, public bodies must conduct their meetings—including deliberations and decisions—open to the public. Several statutory exceptions allow a public body to meet in a closed session, including consulting with legal counsel regarding specific pending litigation; trial and settlement strategy need not be disclosed. However, the Court focused on the roll call requirement and the separate minutes requirement to conclude that the public body must inform citizens why they entered closed session as well as the applicable statutory exemption.

In this case, the statutory exemption was “specific pending litigation,” MCL 15.268(e) (emphasis added), and therefore the Board of Trustees was required to identify the actual litigation it would be discussing before it could properly enter closed session. Not only will townships be required to point to the exemption, but they will also be required to give identifying information, such as “to discuss litigation strategy in Smith v Jones.”

Although this outcome imposes a higher requirement and increased specificity on townships as they enter closed session, it is not entirely unexpected. The Court noted that the Attorney General’s OMA Handbook includes giving the name of the specific lawsuit as part of its examples. However, the Attorney General’s handbook was merely a best practice to follow, not a strict legal requirement. This case now takes that advice and makes it a strict legal requirement under OMA.

Townships must be detailed and precise whenever entering closed session. The statutory basis should be clearly stated, and the specific justification named. That could mean identifying specific litigation, or it could mean identifying another statutory exemption (such as a financial disclosure exemption from FOIA) with corresponding documents identified, and even identifying the general subject matter of a written legal opinion. For example: “to discuss a written legal opinion regarding the scope and impact of proposed zoning amendments addressing alternative energy.”

There is a balance to be struck when recording the purpose of the roll call vote, however, as townships and other public bodies do not and should not identify privileged or protected information. The public should have a general idea of not only the statutory exemption for meeting in a closed session but the subject or scope of the closed session. If townships are not sure how much information to provide when entering closed session, they should consult their township attorneys. Vermilya v Delta College Board of Trustees, Michigan Court of Appeals (July 31, 2018).

MOTIONS AND DECISIONS MUST ADEQUATELY DESCRIBE CLOSED SESSION DIRECTIONS

In the same year, the Court of Appeals issued another decision regarding closed sessions. In this decision, the Court analyzed a public body’s actions immediately after leaving a closed session and returning to open session to make a decision. Again, the Court found that townships must be specific not only when entering closed session, but also when returning to open session. The Court of Appeals considered two meetings where the board entered closed session to discuss specific pending litigation but “without identifying the specific case it would be discussing, and then returning to an open session to pass a motion to accept its counsel’s recommendation, without any indication regarding to what that recommendation pertained.”

The plaintiff alleged the board effectively settled two cases (one at each meeting) and that the settlement agreements were “hidden” from the public because they were not disclosed as part of the OMA process. The board argued the decisions were merely to accept a case evaluation, no settlement documents were presented, and it was not known at either meeting whether the case would settle. The minutes stated motions were approved “to accept the recommendation of counsel and proceed” which the board admitted authorized counsel “to settle the cases within certain parameters.” To the public, however, the recommendation was unknown. Therefore, the Court held that more specific decisions must be announced in open session and included in the minutes.

When stating these decisions or their parameters, it will be very important not to disclose confidential settlement positions. For example, case evaluation awards are considered simultaneously by both plaintiffs and defendants. Each side independently determines whether to accept or reject the award and those decisions are revealed simultaneously, with important legal ramifications. It would be detrimental to a township if they were to publicly announce whether they had accepted or rejected a case evaluation before the appointed time in the litigation. Therefore, in this example, a township could make the decision simply to “accept counsel’s recommendation on whether to accept a case-evaluation award” by a specific date. This does not disclose whether the recommendation was to accept or reject the award but does notify the public that a decision was made regarding the case-evaluation award itself, and the case may or may not settle as of the specific date provided. Andrich v Delta College Board of Trustees, Michigan Court of Appeals (June 5, 2018).

RATIFICATION OF DECISIONS IS AVAILABLE, BUT NOT REQUIRED

Townships can cure defects that would invalidate a decision made at an open meeting by ratifying or reenacting it. For instance, a township could have adopted its township attorney’s recommendation after a closed session without the necessary specificity prior to reading this E-Letter. If the decision is challenged, the township could cure the violation by reenacting the decision and curing the deficiency in approving the township attorney’s recommendation.

This is illustrated through a case decided this year involving improperly noticed meetings. The township involved rescheduled its meeting because the meeting would have been held on the evening of the 2016 presidential election. At the rescheduled meeting, the board approved the appointments of two individuals to the planning commission. That meeting, however, was not properly noticed.

After the election, a new township board took office and held a special meeting on November 22nd. The new board concluded that the November 1st meeting was in violation of OMA, the appointment issue remained open and they added it to their December agenda. Rather than ratify the appointments of the previously-approved members, the new board accepted different applications for the planning commission vacancies and approved those appointments in January 2017.

The members appointed prior to the election sued the township arguing they were unlawfully removed from the planning commission. The previously approved members contended there was no violation of OMA because the lack of proper notice did not impair the rights of the public. The trial court agreed and held that the “only way” the new board could invalidate the actions taken by the old board was if a lawsuit “had been filed in the circuit court.” Therefore, it ruled that the township did not have authority to remove the previously-approved members and appoint new members.

The Court of Appeals reversed the trial court, holding that the new board was permitted to correct a deficiency by ratification, but not required to do so. As an initial matter, the Court ruled that a board does not need to be sued in circuit court before correcting errors on its own. To conclude otherwise would have been a waste of taxpayer dollars. Second, and more to the point, an action taken at a meeting in violation of OMA was ruled to have no force or effect. Therefore, the decision to appoint certain members to the planning commission had no force or effect, so the members were not appointed at that time. Thus, vacancies on the planning commission still existed when the new board took office.

This case highlights several important principles for curing OMA violations. First, it reaffirms the ability of townships and other public bodies to correct procedural errors with a ratification process. This power is vested with the body itself without any need to first be sued. In most cases, where a minor procedural violation of OMA is discovered, a board can reenact the decision to rectify the error. The ability to do so is reaffirmed here.

Second, it emphasizes that ratifications are not mandatory. There may be new information or new circumstances that make ratification unwise. In those cases, a township should not feel compelled to simply ratify what it did a month prior. Further, it shows that an individual affected by an improper meeting is not entitled to having the prior decision ratified. Understandably an individual may hope for the same result at a subsequent meeting, however, that is not required.

Finally, it shows the importance of complying with the technical requirements of OMA. In most cases decisions will be ratified and continued. However, as happened in this case, several intervening factors caused the township to reconsider its position and change course. The public, as well as the public bodies themselves, benefit from confidence in their decisions. Compliance with OMA requirements ensures the final decision remains the final decision and permits citizens to order their affairs accordingly. Lockwood v Township of Ellington, Michigan Court of Appeals (March 13, 2018).

— Matthew Kuschel

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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.