[Vendorsmi] Open Meeting Act Revisited

[Joe Sontag]

An attempt was made to prevent me from speaking during the afternoon public comment period on the 12/15/2012 Elected Operators' Committee meeting agenda.  It seems acting Chairperson Essenberg took it upon himself to require anyone who is not a member of the EOC and who wished to speak during any portion of this EOC meeting to identify her/himself to him at a certain point in the first hour or so of the meeting or be forbidden to speak under any circumstances during the rest of the meeting.  While the Open Meetings Act allows a public body to establish rules to be followed by those who wish to address it, the rules must be established and recorded; and the on-the-fly "rule" was not a posted matter of Committee business, was not recorded or published prior to the meeting and is no different from requiring people attending an EOC meeting to register, a practice forbidden by the Open Meetings Act of 1976, by which the Committee is bound.  Thanks to James Chaney, I was permitted to say a few words about HB6006 and some of my experiences gained while talking to various Representatives and their Staff.

This is the second time in the past two months that the OMA has been violated by BSBP and the EOC in an apparent effort to intimidate or harass me and to keep the truth from getting out, a strategy guaranteed to fail ultimately.  BSBP is responsible for the administration of the Business Enterprise Program by promulgated rule.

Here is the OMA in all its glory.  I have placed a double asterisk by those sections of the Act that seem to be misunderstood, however deliberately, by BSBP Staff and those on the Committee who choose to serve the Agency instead of serving the operators who voted them into their positions of trust.  Hint: it is much easier to conduct a truly open meeting when you decide in advance to not worry about who will attend it, what anyone might say publicly about anything relevant to the public body or business that properly comes before it and that your conduct during the meeting will not be controlled by your feelings about certain individuals, their politics, your personal agenda etc.

Joe Sontag

OPEN MEETINGS ACT
Act 267 of 1976
AN ACT to require certain meetings of certain public bodies to be open to the public;
to require notice and the keeping of minutes of meetings; to provide for enforcement;
to provide for invalidation of governmental decisions under certain circumstances;
to provide penalties; and to repeal certain acts and parts of acts.
History: 1976, Act 267, Eff. Mar. 31, 1977
© 2009 Legislative Council, State of Michigan
The People of the State of Michigan enact:
15.261 Short title; effect of act on certain charter provisions, ordinances, or resolutions.
Sec. 1.
(1) This act shall be known and may be cited as the "Open meetings act".
(2) This act shall supersede all local charter provisions, ordinances, or resolutions
which relate to requirements for meetings of local public bodies to be open to the
public.
(3) After the effective date of this act, nothing in this act shall prohibit a public
body from adopting an ordinance, resolution, rule, or charter provision which would
require a greater degree of openness relative to meetings of public bodies than the
standards provided for in this act.
History: 1976, Act 267, Eff. Mar. 31, 1977
© 2009 Legislative Council, State of Michigan
15.262 Definitions.
Sec. 2.
As used in this act:
(a) "Public body" means any state or local legislative or governing body, including
a board, commission, committee, subcommittee, authority, or council, that is empowered
by state constitution, statute, charter, ordinance, resolution, or rule to exercise
governmental or proprietary authority or perform a governmental or proprietary function;
a lessee of such a body performing an essential public purpose and function pursuant
to the lease agreement; or the board of a nonprofit corporation formed by a city
under section 4o of the home rule city act, 1909 PA 279, MCL 117.4o.
(b) "Meeting" means the convening of a public body at which a quorum is present for
the purpose of deliberating toward or rendering a decision on a public policy, or
any meeting of the board of a nonprofit corporation formed by a city under section
4o of the home rule city act, 1909 PA 279, MCL 117.4o.
(c) "Closed session" means a meeting or part of a meeting of a public body that is
closed to the public.
(d) "Decision" means a determination, action, vote, or disposition upon a motion,
proposal, recommendation, resolution, order, ordinance, bill, or measure on which
a vote by members of a public body is required and by which a public body effectuates
or formulates public policy.
History: 1976, Act 267, Eff. Mar. 31, 1977 ;-- Am. 2001, Act 38, Imd. Eff. July 11,
2001
© 2009 Legislative Council, State of Michigan
15.263 Meetings, decisions, and deliberations of public body; requirements; attending
or addressing meeting of public body; tape-recording, videotaping, broadcasting,
and telecasting proceedings; rules and regulations; exclusion from meeting; exemptions.
**Sec. 3.
(1) All meetings of a public body shall be open to the public and shall be held in
a place available to the general public. All persons shall be permitted to attend
any meeting except as otherwise provided in this act. The right of a person to attend
a meeting of a public body includes the right to tape-record, to videotape, to broadcast
live on radio, and to telecast live on television the proceedings of a public body
at a public meeting. The exercise of this right shall not be dependent upon the prior
approval of the public body. However, a public body may establish reasonable rules
and regulations in order to minimize the possibility of disrupting the meeting.
(2) All decisions of a public body shall be made at a meeting open to the public.
(3) All deliberations of a public body constituting a quorum of its members shall
take place at a meeting open to the public except as provided in this section and
sections 7 and 8.
**(4) A person shall not be required as a condition of attendance at a meeting of a
public body to register or otherwise provide his or her name or other information
or otherwise to fulfill a condition precedent to attendance.
**(5) A person shall be permitted to address a meeting of a public body under rules
established and recorded by the public body. The legislature or a house of the legislature
may provide by rule that the right to address may be limited to prescribed times
at hearings and committee meetings only.
(6) A person shall not be excluded from a meeting otherwise open to the public except
for a breach of the peace actually committed at the meeting.
(7) This act does not apply to the following public bodies only when deliberating
the merits of a case:
(a) The worker's compensation appeal board created under the worker's disability
compensation act of 1969, Act No. 317 of the Public Acts of 1969, as amended, being
sections 418.101 to 418.941 of the Michigan Compiled Laws.
(b) The employment security board of review created under the Michigan employment
security act, Act No. 1 of the Public Acts of the Extra Session of 1936, as amended,
being sections 421.1 to 421.73 of the Michigan Compiled Laws.
(c) The state tenure commission created under Act No. 4 of the Public Acts of the
Extra Session of 1937, as amended, being sections 38.71 to 38.191 of the Michigan
Compiled Laws, when acting as a board of review from the decision of a controlling
board.
(d) An arbitrator or arbitration panel appointed by the employment relations commission
under the authority given the commission by Act No. 176 of the Public Acts of 1939,
as amended, being sections 423.1 to 423.30 of the Michigan Compiled Laws.
(e) An arbitration panel selected under chapter 50A of the revised judicature act
of 1961, Act No. 236 of the Public Acts of 1961, being sections 600.5040 to 600.5065
of the Michigan Compiled Laws.
(f) The Michigan public service commission created under Act No. 3 of the Public
Acts of 1939, being sections 460.1 to 460.8 of the Michigan Compiled Laws.
(8) This act does not apply to an association of insurers created under the insurance
code of 1956, Act No. 218 of the Public Acts of 1956, being sections 500.100 to 500.8302
of the Michigan Compiled Laws, or other association or facility formed under Act
No. 218 of the Public Acts of 1956 as a nonprofit organization of insurer members.
(9) This act does not apply to a committee of a public body which adopts a nonpolicymaking
resolution of tribute or memorial which resolution is not adopted at a meeting.
**(10) This act does not apply to a meeting which is a social or chance gathering or
conference not designed to avoid this act.
(11) This act shall not apply to the Michigan veterans' trust fund board of trustees
or a county or district committee created under Act No. 9 of the Public Acts of the
first extra session of 1946, being sections 35.601 to 35.610 of the Michigan Compiled
Laws, when the board of trustees or county or district committee is deliberating
the merits of an emergent need. A decision of the board of trustees or county or
district committee made under this subsection shall be reconsidered by the board
or committee at its next regular or special meeting consistent with the requirements
of this act. "Emergent need" means a situation which the board of trustees, by rules
promulgated under the administrative procedures act of 1969, Act No. 306 of the Public
Acts of 1969, as amended, being sections 24.201 to 24.328 of the Michigan Compiled
Laws, determines requires immediate action.
History:
 1976, Act 267, Eff. Mar. 31, 1977 ;-- Am. 1981, Act 161, Imd. Eff. Nov. 30, 1981
;-- Am. 1986, Act 269, Imd. Eff. Dec. 19, 1986 ;-- Am. 1988, Act 158, Imd. Eff. June
14, 1988 ;-- Am. 1988, Act 278, Imd. Eff. July 27, 1988
Admin Rule: R 35.621 of the Michigan Administrative Code.
© 2009 Legislative Council, State of Michigan
15.264 Public notice of meetings generally; contents; places of posting.
**Sec. 4.
The following provisions shall apply with respect to public notice of meetings:
(a) A public notice shall always contain the name of the public body to which the
notice applies, its telephone number if one exists, and its address.
(b) A public notice for a public body shall always be posted at its principal office
and any other locations considered appropriate by the public body. Cable television
may also be utilized for purposes of posting public notice.
(c) If a public body is a part of a state department, part of the legislative or
judicial branch of state government, part of an institution of higher education,
or part of a political subdivision or school district, a public notice shall also
be posted in the respective principal office of the state department, the institution
of higher education, clerk of the house of representatives, secretary of the state
senate, clerk of the supreme court, or political subdivision or school district.
(d) If a public body does not have a principal office, the required public notice
for a local public body shall be posted in the office of the county clerk in which
the public body serves and the required public notice for a state public body shall
be posted in the office of the secretary of state.
History: 1976, Act 267, Eff. Mar. 31, 1977 ;-- Am. 1984, Act 87, Imd. Eff. Apr. 19,
1984
© 2009 Legislative Council, State of Michigan
15.265 Public notice of regular meetings, change in schedule of regular meetings,
rescheduled regular meetings, or special meetings; time for posting; statement of
date, time, and place; applicability of subsection (4); recess or adjournment; emergency
sessions; meeting in residential dwelling; notice.
**Sec. 5.
(1) A meeting of a public body shall not be held unless public notice is given as
provided in this section by a person designated by the public body.
(2) For regular meetings of a public body, there shall be posted within 10 days after
the first meeting of the public body in each calendar or fiscal year a public notice
stating the dates, times, and places of its regular meetings.
(3) If there is a change in the schedule of regular meetings of a public body, there
shall be posted within 3 days after the meeting at which the change is made, a public
notice stating the new dates, times, and places of its regular meetings.
(4) Except as provided in this subsection or in subsection (6), for a rescheduled
regular or a special meeting of a public body, a public notice stating the date,
time, and place of the meeting shall be posted at least 18 hours before the meeting.
The requirement of 18-hour notice shall not apply to special meetings of subcommittees
of a public body or conference committees of the state legislature. A conference
committee shall give a 6-hour notice. A second conference committee shall give a
1-hour notice. Notice of a conference committee meeting shall include written notice
to each member of the conference committee and the majority and minority leader of
each house indicating time and place of the meeting. This subsection does not apply
to a public meeting held pursuant to section 4(2) to (5) of Act No. 239 of the Public
Acts of 1955, as amended, being section 200.304 of the Michigan Compiled Laws.
(5) A meeting of a public body which is recessed for more than 36 hours shall be
reconvened only after public notice, which is equivalent to that required under subsection
(4), has been posted. If either house of the state legislature is adjourned or recessed
for less than 18 hours, the notice provisions of subsection (4) are not applicable.
Nothing in this section shall bar a public body from meeting in emergency session
in the event of a severe and imminent threat to the health, safety, or welfare of
the public when 2/3 of the members serving on the body decide that delay would be
detrimental to efforts to lessen or respond to the threat.
(6) A meeting of a public body may only take place in a residential dwelling if a
nonresidential building within the boundary of the local governmental unit or school
system is not available without cost to the public body. For a meeting of a public
body which is held in a residential dwelling, notice of the meeting shall be published
as a display advertisement in a newspaper of general circulation in the city or township
in which the meeting is to be held. The notice shall be published not less than 2
days before the day on which the meeting is held, and shall state the date, time,
and place of the meeting. The notice, which shall be at the bottom of the display
advertisement and which shall be set off in a conspicuous manner, shall include the
following language: "This meeting is open to all members of the public under Michigan's
open meetings act".
History: 1976, Act 267, Eff. Mar. 31, 1977 ;-- Am. 1978, Act 256, Imd. Eff. June
21, 1978 ;-- Am. 1982, Act 134, Imd. Eff. Apr. 22, 1982 ;-- Am. 1984, Act 167, Imd.
Eff. June 29, 1984
© 2009 Legislative Council, State of Michigan
15.266 Providing copies of public notice on written request; fee.
Sec. 6.
(1) Upon the written request of an individual, organization, firm, or corporation,
and upon the requesting party's payment of a yearly fee of not more than the reasonable
estimated cost for printing and postage of such notices, a public body shall send
to the requesting party by first class mail a copy of any notice required to be posted
pursuant to section 5(2) to (5).
(2) Upon written request, a public body, at the same time a public notice of a meeting
is posted pursuant to section 5, shall provide a copy of the public notice of that
meeting to any newspaper published in the state and to any radio and television station
located in the state, free of charge.
History: 1976, Act 267, Eff. Mar. 31, 1977
© 2009 Legislative Council, State of Michigan
15.267 Closed sessions; roll call vote; separate set of minutes.
**Sec. 7.
(1) A 2/3 roll call vote of members elected or appointed and serving is required
to call a closed session, except for the closed sessions permitted under section
8(a), (b), (c), (g), (i), and (j). The roll call vote and the purpose or purposes
for calling the closed session shall be entered into the minutes of the meeting at
which the vote is taken.
(2) A separate set of minutes shall be taken by the clerk or the designated secretary
of the public body at the closed session. These minutes shall be retained by the
clerk of the public body, are not available to the public, and shall only be disclosed
if required by a civil action filed under section 10, 11, or 13. These minutes may
be destroyed 1 year and 1 day after approval of the minutes of the regular meeting
at which the closed session was approved.
History: 1976, Act 267, Eff. Mar. 31, 1977 ;-- Am. 1993, Act 81, Eff. Apr. 1, 1994
;-- Am. 1996, Act 464, Imd. Eff. Dec. 26, 1996
© 2009 Legislative Council, State of Michigan
15.268 Closed sessions; permissible purposes.
**Sec. 8.
A public body may meet in a closed session only for the following purposes:
(a) To consider the dismissal, suspension, or disciplining of, or to hear complaints
or charges brought against, or to consider a periodic personnel evaluation of, a
public officer, employee, staff member, or individual agent, if the named person
requests a closed hearing. A person requesting a closed hearing may rescind the request
at any time, in which case the matter at issue shall be considered after the rescission
only in open sessions.
(b) To consider the dismissal, suspension, or disciplining of a student if the public
body is part of the school district, intermediate school district, or institution
of higher education that the student is attending, and if the student or the student's
parent or guardian requests a closed hearing.
(c) For strategy and negotiation sessions connected with the negotiation of a collective
bargaining agreement if either negotiating party requests a closed hearing.
(d) To consider the purchase or lease of real property up to the time an option to
purchase or lease that real property is obtained.
(e) To consult with its 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.
(f) To review and consider the contents of an application for employment or appointment
to a public office if the candidate requests that the application remain confidential.
However, except as otherwise provided in this subdivision, all interviews by a public
body for employment or appointment to a public office shall be held in an open meeting
pursuant to this act. This subdivision does not apply to a public office described
in subdivision (j).
(g) Partisan caucuses of members of the state legislature.
(h) To consider material exempt from discussion or disclosure by state or federal
statute.
(i) For a compliance conference conducted by the department of commerce under section
16231 of the public health code, Act No. 368 of the Public Acts of 1978, being section
333.16231 of the Michigan Compiled Laws, before a complaint is issued.
(j) In the process of searching for and selecting a president of an institution of
higher education established under section 4, 5, or 6 of article VIII of the state
constitution of 1963, to review the specific contents of an application, to conduct
an interview with a candidate, or to discuss the specific qualifications of a candidate
if the particular process of searching for and selecting a president of an institution
of higher education meets all of the following requirements:
(i) The search committee in the process, appointed by the governing board, consists
of at least 1 student of the institution, 1 faculty member of the institution, 1
administrator of the institution, 1 alumnus of the institution, and 1 representative
of the general public. The search committee also may include 1 or more members of
the governing board of the institution, but the number shall not constitute a quorum
of the governing board. However, the search committee shall not be constituted in
such a way that any 1 of the groups described in this subparagraph constitutes a
majority of the search committee.
(ii) After the search committee recommends the 5 final candidates, the governing
board does not take a vote on a final selection for the president until at least
30 days after the 5 final candidates have been publicly identified by the search
committee.
(iii) The deliberations and vote of the governing board of the institution on selecting
the president take place in an open session of the governing board.
History: 1976, Act 267, Eff. Mar. 31, 1977 ;-- Am. 1984, Act 202, Imd. Eff. July
3, 1984 ;-- Am. 1993, Act 81, Eff. Apr. 1, 1994 ;-- Am. 1996, Act 464, Imd. Eff.
Dec. 26, 1996
© 2009 Legislative Council, State of Michigan
15.269 Minutes.
**Sec. 9.
(1) Each public body shall keep minutes of each meeting showing the date, time, place,
members present, members absent, any decisions made at a meeting open to the public,
and the purpose or purposes for which a closed session is held. The minutes shall
include all roll call votes taken at the meeting. The public body shall make any
corrections in the minutes at the next meeting after the meeting to which the minutes
refer. The public body shall make corrected minutes available at or before the next
subsequent meeting after correction. The corrected minutes shall show both the original
entry and the correction.
(2) Minutes are public records open to public inspection, and a public body shall
make the minutes available at the address designated on posted public notices pursuant
to section 4. The public body shall make copies of the minutes available to the public
at the reasonable estimated cost for printing and copying.
(3) A public body shall make proposed minutes available for public inspection within
8 business days after the meeting to which the minutes refer. The public body shall
make approved minutes available for public inspection within 5 business days after
the meeting at which the minutes are approved by the public body.
(4) A public body shall not include in or with its minutes any personally identifiable
information that, if released, would prevent the public body from complying with
section 444 of subpart 4 of part C of the general education provisions act, 20 USC
1232g, commonly referred to as the family educational rights and privacy act of 1974.
History: 1976, Act 267, Eff. Mar. 31, 1977 ;-- Am. 1982, Act 130, Imd. Eff. Apr.
20, 1982 ;-- Am. 2004, Act 305, Imd. Eff. Aug. 11, 2004
© 2009 Legislative Council, State of Michigan
15.270 Decisions of public body; presumption; civil action to invalidate; jurisdiction;
venue; reenactment of disputed decision.
**Sec. 10.
(1) Decisions of a public body shall be presumed to have been adopted in compliance
with the requirements of this act. The attorney general, the prosecuting attorney
of the county in which the public body serves, or any person may commence a civil
action in the circuit court to challenge the validity of a decision of a public body
made in violation of this act.
(2) A decision made by a public body may be invalidated if the public body has not
complied with the requirements of section 3(1), (2), and (3) in making the decision
or if failure to give notice in accordance with section 5 has interfered with substantial
compliance with section 3(1), (2), and (3) and the court finds that the noncompliance
or failure has impaired the rights of the public under this act.
(3) The circuit court shall not have jurisdiction to invalidate a decision of a public
body for a violation of this act unless an action is commenced pursuant to this section
within the following specified period of time:
(a) Within 60 days after the approved minutes are made available to the public by
the public body except as otherwise provided in subdivision (b).
(b) If the decision involves the approval of contracts, the receipt or acceptance
of bids, the making of assessments, the procedures pertaining to the issuance of
bonds or other evidences of indebtedness, or the submission of a borrowing proposal
to the electors, within 30 days after the approved minutes are made available to
the public pursuant to that decision.
(4) Venue for an action under this section shall be any county in which a local public
body serves or, if the decision of a state public body is at issue, in Ingham county.
(5) In any case where an action has been initiated to invalidate a decision of a
public body on the ground that it was not taken in conformity with the requirements
of this act, the public body may, without being deemed to make any admission contrary
to its interest, reenact the disputed decision in conformity with this act. A decision
reenacted in this manner shall be effective from the date of reenactment and shall
not be declared invalid by reason of a deficiency in the procedure used for its initial
enactment.
History: 1976, Act 267, Eff. Mar. 31, 1977
© 2009 Legislative Council, State of Michigan
15.271 Civil action to compel compliance or enjoin noncompliance; commencement; venue;
security not required; commencement of action for mandamus; court costs and attorney
fees.
**Sec. 11.
(1) If a public body is not complying with this act, the attorney general, prosecuting
attorney of the county in which the public body serves, or a person may commence
a civil action to compel compliance or to enjoin further noncompliance with this
act.
(2) An action for injunctive relief against a local public body shall be commenced
in the circuit court, and venue is proper in any county in which the public body
serves. An action for an injunction against a state public body shall be commenced
in the circuit court and venue is proper in any county in which the public body has
its principal office, or in Ingham county. If a person commences an action for injunctive
relief, that person shall not be required to post security as a condition for obtaining
a preliminary injunction or a temporary restraining order.
(3) An action for mandamus against a public body under this act shall be commenced
in the court of appeals.
(4) If a public body is not complying with this act, and a person commences a civil
action against the public body for injunctive relief to compel compliance or to enjoin
further noncompliance with the act and succeeds in obtaining relief in the action,
the person shall recover court costs and actual attorney fees for the action.
History: 1976, Act 267, Eff. Mar. 31, 1977
© 2009 Legislative Council, State of Michigan
15.272 Violation as misdemeanor; penalty.
Sec. 12.
(1) A public official who intentionally violates this act is guilty of a misdemeanor
punishable by a fine of not more than $1,000.00.
(2) A public official who is convicted of intentionally violating a provision of
this act for a second time within the same term shall be guilty of a misdemeanor
and shall be fined not more than $2,000.00, or imprisoned for not more than 1 year,
or both.
History: 1976, Act 267, Eff. Mar. 31, 1977
© 2009 Legislative Council, State of Michigan
15.273 Violation; liability.
**Sec. 13.
(1) A public official who intentionally violates this act shall be personally liable
in a civil action for actual and exemplary damages of not more than $500.00 total,
plus court costs and actual attorney fees to a person or group of persons bringing
the action.
(2) Not more than 1 action under this section shall be brought against a public official
for a single meeting. An action under this section shall be commenced within 180
days after the date of the violation which gives rise to the cause of action.
(3) An action for damages under this section may be joined with an action for injunctive
or exemplary relief under section 11.
History: 1976, Act 267, Eff. Mar. 31, 1977
© 2009 Legislative Council, State of Michigan
15.273a Selection of president by governing board of higher education institution;
violation; civil fine.
Sec. 13a.
If the governing board of an institution of higher education established under section
4, 5, or 6 of article VIII of the state constitution of 1963 violates this act with
respect to the process of selecting a president of the institution at any time after
the recommendation of final candidates to the governing board, as described in section
8(j), the institution is responsible for the payment of a civil fine of not more
than $500,000.00. This civil fine is in addition to any other remedy or penalty under
this act. To the extent possible, any payment of fines imposed under this section
shall be paid from funds allocated by the institution of higher education to pay
for the travel and expenses of the members of the governing board.
History: Add. 1996, Act 464, Imd. Eff. Dec. 26, 1996
© 2009 Legislative Council, State of Michigan
15.274 Repeal of MCL 15.251 to 15.253.
Sec. 14.
Act No. 261 of the Public Acts of 1968, being sections 15.251 to 15.253 of the Compiled
Laws of 1970, is repealed.
History: 1976, Act 267, Eff. Mar. 31, 1977
© 2009 Legislative Council, State of Michigan
15.275 Effective date.
Sec. 15.
This act shall take effect January 1, 1977.
History: 1976, Act 267, Eff. Mar. 31, 1977
© 2009 Legislative Council, State of Michigan
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