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Since the start of the COVID-19 pandemic, drain commissioners across the state have been holding meetings of their public bodies (including boards of determination and the various drainage boards under the Drain Code) remotely through the use of platforms such as Zoom. This authority was first granted by executive order from the governor and later by an October legislative amendment to the Open Meetings Act (Senate Bill 1108). In that amendment, the legislature provided the authority for public bodies to hold remote meetings for any reason from March 18, 2020, through December 31, 2020. Due to the ongoing nature of the pandemic, many organizations (including the Michigan Association of County Drain Commissioners) requested that the legislature provide an extension of the time for which remote meetings may be held for any reason beyond December 31, 2020.  

Extension of Time for Public Bodies to Conduct Remote Meetings

On December 9, 2020, the Michigan Senate voted 36-1 to pass Senate Bill 1246 (2020), a bill to amend the Open Meetings Act to extend the date during which public bodies can meet remotely for any reason through March 30, 2021. The House voted to pass the bill on December 16th, by a vote of 94-13. The governor signed the legislation into law on December 22nd.

Requirements for Electronic Attendance at Meetings After March 30, 2021 Through December 31, 2021

Under the new amendment, after March 30th and through December 31, 2021, a public meeting may only be held fully- or partially-remotely (with one or more members attending electronically) for the following reasons:

1. To accommodate members of the public body absent due to military duty.
2. To accommodate members of the public body absent due to a medical condition.
3. During a statewide or local state of emergency or disaster where the public body usually meets or to accommodate a member of the public body who lives in the affected area.

Other Requirements for Hosting Remote Meetings

This most recent amendment does not change any of the other hosting requirements for remote meetings under the Open Meeting Act that were established by the October amendment. It is important to keep in mind that, if you are holding an electronic meeting, you are required to:

• Conduct the meeting in a way that allows for two-way communication between the public and members of the public body.
• Include additional information in notices that are not required in notices for standard in-person meetings.
• Have each member of the public body announce that he or she is attending remotely and state his or her location (this must also be reflected in the minutes).
• Post an agenda for the meeting (if one exists) online at least two hours before the meeting.
• Create procedures by which members may participate remotely for military duty, medical condition, or statewide or local state of emergency/disaster. These procedures are not required for the fully remote meetings that may be held for any reason through March 30, 2021.

Who Can Declare a Local State of Emergency or Disaster?

Drain commissioners are not empowered to declare a local state of emergency/disaster by law for these purposes. Once the authority to hold remote meetings for any reason ends after March 30, 2021, you may need a declared local state of emergency/disaster to hold a meeting remotely if a statewide state of emergency/disaster is not in place. This new amendment provides more clarity and authority for local officials that have the authority to make those declarations.

The October amendment to the Open Meetings Act provided the authority for state or local emergencies/disasters to be declared by the governor, local official, or local governing body pursuant to law or charter. The new amendment states that a local state of emergency may also be declared by a chief administrative officer and it adds “local ordinance” to the types of authority that can provide for the states of emergency. A chief administrative officer would have the ability to declare a local state of emergency or disaster without a public body needing to pass an ordinance by vote. This removes the procedural hurdle of a vote and would enable chief administrative officials to quickly enable public bodies to meet remotely in that locality.

Bottom Line

These are the main effects on the Open Meetings Act as it relates to holding electronic meetings over the next year and beyond:

1. You may hold electronic meetings of the public bodies under your jurisdiction for any reason through March 30, 2021.
2. After March 30, 2021 and until December 31, 2021, you may hold fully- or partially-electronic meetings for the limited reasons of: military-related absence, medical-related absence, or absence related to statewide or local state of emergency/disaster.
3. After December 31, 2021, the authority for remote attendance will only exist to accommodate military-related absence.

Our firm will continue to monitor updates to laws and regulations surrounding the COVID-19 pandemic. As always, please contact Fahey Schultz Burzych Rhodes PLC with any questions or concerns.