[nfbmi-talk] important open meeting act story

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foia-friday-open-meetings-act-lawsuits-seek-to-preserve-public-access-to-decisionmaking-process/

 

 

FOIA Friday: Open Meetings Act lawsuits seek to preserve public access to decision-making process

Edward Vielmetti

Posted: Oct 1, 2010 at 6:00 AM [Oct 1, 2010]

 

The

Ann Arbor Chronicle has sued the City of Ann Arbor

over allegations that a closed meeting led to secret deliberations on the city's medical marijuana licensing in advance of the August primary elections.

 

The city of Ann Arbor is not the only organization accused of using closed door dealings in order to avoid public scrutiny and interminable public commentary

on decisions. Here's a a roundup for

FOIA Friday

on some other cases that have come up, both in Michigan and in other states, that illustrate some aspects of the Open Meetings Act and the sometimes contentious

relationships between citizens, the media, and elected or appointed officials in the handling of official business in the open.

 

Open Meetings Act laws in Michigan

 

The

Michigan Open Meetings Act

dates from 1977. The statutes spell out which meetings need to be open to the public, how the public is notified of meetings in advance, and what the process

and requirements are for going into closed session. This part specifically discusses a limited set of matters that are allowed by law to be discussed in

private in advance of a decision being made.

 

Several organizations have put together good and comprehensive guides to the Open Meetings Act, aimed at citizens, elected officials and the media.

 

The

Citizen Media Law Project

aims its guidelines at individuals who may not have the benefit of legal representation for the company they work for:

 

"You may also sue to have a court invalidate past actions of public bodies taken in violation of the Open Meetings Act, but only if you file suit within

60 days after the approved minutes for the meeting in question became available. You can also sue to obtain disclosure of the minutes of an improperly

closed session and to get civil damages from members of the public body, but no sixty-day time limit applies to those kinds of cases. If you decide to

sue, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal

Help section for details on finding legal representation."

 

The

Reporters Committee for the Freedom of the Press

maintains an

Open Government Guide for Michigan

as a part of its 50 state project to provide detailed and quick access to information about how state laws vary. Here are its guidelines regarding closing

a meeting under an attorney-client privilege:

 

"Not addressed. See generally

MCLA § 15.268(e).

A closed session may be held "[t]o consult with [an] attorney regarding trial or settlement strategy in connection with specific pending litigation, but

only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body." Id. See also, People v.

Whitney, supra."

 

Open Meetings Act and hiring and firing

 

The most bitter Open Meetings Act battles are the battles that happen when a dispute within an organization bleeds over into the courtroom. I'll illustrate

with

People v Whitney,

578 NW 2d 329 - Mich: Court of Appeals 1998. In this case, a dispute among members of the City Council of Vassar about the performance of its city manager

spilled over into litigation that lasted 6 years:

 

"For reasons that are not entirely clear from the record, it appears that defendants and council member Miller were displeased with the job performance

and policies followed by Michael LaChance, then the city manager of the city of Vassar."

 

A similar dispute in

St. Aubin v. Ishpeming City Council,

494 NW 2d 803 - Mich: Court of Appeals 1992, dealt with a private meeting among all members of the council to fire the city manager:

 

"Plaintiff also asserts that the October 4, 1989, meeting violated the OMA. On that occasion, the entire city council met with plaintiff in a nonpublic

session. Plaintiff was told that if she did not resign, she would be terminated at a subsequent open council meeting. Because the decision was made that

plaintiff would not be allowed to continue as city manager, the nonpublic meeting violated MCL 15.263(1) and (2); MSA 4.1800(13)(1) and (2)."

 

It's clear that when two sides in an Open Meetings Act dispute both are within the same organization, that there can be very bitter battles that last a

long time. You'll see similar cases or threats show up whenever someone gets fired and when they allege that the decision was made in a secret meeting.

 

Open Meetings Act cases and attorney-client privilege

 

Another set of Open Meetings Act battles happen when the media sees that public policy decisions are made in secret. In the Ann Arbor Chronicle case, the

allegations are that the City of Ann Arbor was "cloaking secret decision-making with the attorney-client privilege."

 

"The closed session was supposedly called for the purpose of attorney-client privileged information, however the discussions regarding medical marijuana

were not restricted to the specific legal advice contained in an attorney-client privileged document."

 

The case law cited is the People v. Whitney case above, which merits further study. A key portion of that case reads as follows:

 

"It would be illogical to construe the attorney-client-privilege exemption as authorizing a public body to evade the open meeting requirements of the OMA

merely by involving a written opinion from an attorney in the substantive discussion of a matter of public policy for which no other exemption in the OMA

would allow a closed meeting. See Gross v. General Motors Corp., 448 Mich. 147, 164, 528 N.W.2d 707 (1995) (statutes must be construed to prevent illogical

or absurd results). To avoid this illogical result, we conclude that proper discussion of a written legal opinion at a closed meeting is, with regard to

the attorney-client privilege, limited to the meaning of any strictly legal advice presented in the written opinion. The attorney-client-privilege exemption

does not extend to matters other than the provision of strictly legal advice."

 

Sue Ann Douglas, Oakland County Commissioner, writes in

Know the Michigan Open Meetings Act and Keep Government Open and Honest:

 

"All final decisions of the public body must be made in public with few exceptions. The overuse of attorney client privilege can be problematic. It's legal

to discuss pending litigation strategy with your attorney in private. However, it's not alright to settle that litigation in the back room or finalize

public policy decisions in private. In fact, you shouldn't do any more than determine a consensus on strategy in closed session."

 

What to do if you see an Open Meetings Act violation

 

In general, it's difficult to be a complete outsider to the system and get relief from Open Meetings Act violations. If you are aware of a violation and

wish to challenge the decisions made because of it, you need to go to court. This is unlike the process in the Freedom of Information Act, which allows

for a whole round of administrative review before anything lands in court.

 

There are external resources to help fund at least part of the cost of taking on this litigation. The

National Freedom of Information Coalition has awarded a Knight FOIA Fund grant

in the amount of $2,000 to support litigation in the case of the

North Country Gazette

seeking that the Chestertown, N.Y., Volunteer Fire Company acknowledge its responsibility to New York state law regarding open meetings and public records.

The fire company

recently fired its attorney,

according to the Gazette.

 

Allegations of secret dealings can descend into unprovable conspiracy theories. The Chronicle's editorial on

upholding the Open Meeting Act

notes that some part of avoiding this kind of controversy can be done relatively simply by changing procedures to minimize the chance that the law will

be inadvertently violated. The Chronicle quotes from the

Michigan Attorney General's Handbook on the Open Meetings Act:

 

"We suggest that every motion to go into closed session should cite one or more of the permissible purposes listed in section 8 of the OMA. An example of

a motion to go into closed session is: I move that the Board meet in closed session under section 8(e) of the Open Meetings Act, to consult with our attorney

regarding trial or settlement strategy in connection with [the name of the specific lawsuit]."

 

Until this kind of language is routine in all meetings of all public bodies which adjourn to closed session to meet in private with their attorneys, the

public will continue to wonder what goes on behind closed doors.

 

Edward Vielmetti writes the FOIA Friday column for AnnArbor.com. He is not an attorney, and this is not legal advice. Contact him at

edwardvielmetti at annarbor.com.