Michigan Legal and Legislative Update Summer 2014

A number of bills remain in the legislative hopper to improve public access and government transparency, and three court cases could have significant impact on openness and public access for Michigan in the future. The Legislative Bills: HB 5580, introduced by Representatives Greg MacMaster, Ray Franz and Pat Somerville would clarify the responsibilities of public bodies in Michigan under the Open meetings Act to record full and accurate information on discussions and decisions at meetings of public bodies. Specifically, the proposal wouldamend Section 9 as follows (proposed changes are in ALL CAPS): “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, ALL MATTERS CONSIDERED BY THE PUBLIC BODY,and the purpose or purposes for which a closed session is held. The minutes shall include all roll call votes taken at the meetingAND, IF A DECISION ON ANY MATTER OF POLICY IS NOT UNANIMOUS, HOW EACH MEMBER VOTED. IF THE PUBLIC BODY DOES NOT RETAIN A TAPE RECORDING OR OTHER ELECTRONIC RECORD OF THE MEETING, THE MINUTES SHALL INCLUDE THE MAIN POINTS OF THE DISCUSSION SUPPORTING AND IN OPPOSITION TO EACH MEASURE UNDERCONSIDERATION AND SHALL INCLUDE THE NAME, THE SUBJECT MATTER, AND A SUMMARY OF THE REMARKS FOR EACH PERSON WHO ADDRESSES THE PUBLIC BODY…” The bill is currently pending review in the House Oversight Committee. The proposed changes to the law would provide greater transparency and accountability of public officials conducting the public business during their meetings. HB 4001 which involves a significant strengthening and improvement in the state Freedom of Information Law is still waiting action in the Senate’s Government Operations Committee. The House passed the bill in March. The bill was referred to the Senate Committee on March 25, 2014. HB 5193 which clarified the meaning of pending litigation in the Open Meetings Act exemptions was approved by the House in May and referred to the Senate. The bills is currently in the Government Operations Committee of the Senate. HB 4134 which would create a FOI Commission is still pending in the House Oversight Committee, chair by Rep. Tom McMillin, the bill’s sponsor. We hope for action on the bill this fall. Court Cases: The Detroit Free Press and Federated Publications (Lansing State Journal) on Friday (7-11-2014) filed a lawsuit against the University of Michigan’s Board of Regents in the state Court of Claims alleging the board routinely violates the Open Meetings Act and the constitutional mandate that “formal sessions…shall be open to the public…” The lawsuit states that the Regents routinely meet in secret pre-meetings and retreats. The lawsuit cites two 2014 public meetings, where the Regents approve numerous motions unanimously without discussion concluding the decision making occurred in the earlier non-public meetings. The lawsuit also charges that out of state private meetings in 2013 and 2014 also violate the OMA since the meetings are held in places inaccessible to members of the public. The lawsuit directly challenges the Regents’ interpretation of a 1999 Michigan Supreme Court decision that allowed university boards to conduct presidential searches in secret. Immediately after that decision, Michigan’s 15 pubic university boards began operating as if they were completely exempt from the OMA. Language in the 1999 decision said the Legislature does not have power to regulate open meetings for defendant in the context of presidential searches at all…” But other language also suggested that universities, just like the Courts (which exempted themselves from both OMA and FOIA when those laws went into effect), were similarly exempt. In another OMA case,Kenneth J. Speicher v. Township of Columbia Board of Trustees and Columbia Township Planning Commission, the Michigan Supreme Court has agreed to hear an appeal on attorneys fees and court costs in an OMA case (SC No. 148617). Plaintiff Speicher prevailed in an OMA lawsuit. He sought attorney fees and court costs–a practice supported, he argues, by the statute and by a long line of appellate decisions. The Court of Appeals raised the issue that awarding these costs was not appropriate because the statutory language gives this for injunctive relief not declaratory relief. In a FOIA decision, the Court of Appeals, in an unpublished decision, Ann Anklam v. Delta College District and Delta College Board of Trustees, (CoA No. 317962) ruled that public bodies exempting materials under the FOIA must explain what, under the statute, justifies that and mere recitation of the statutory language is insufficient, the exemptions must be narrowly construed. The three judges rejected Delta and the trial court’s actions acknowledging the problem when a public body insists records are exempt but won’t explain why because “the public body is up to the task of preventing an error…”No word on if the decision is being appealed.

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