Lawyer Explains Public's, Municipalities' Rights in Open Meetings Act
By Amy Polk

John Gillooly (center), an attorney with Garan Lucow Miller of Detroit, talks with (from left) St. Ignace City Clerk Renee Vonderwerth, City Manager Eric Dodson, and Mackinaw City Village President Ronald Wallin Wednesday, February 27, after his presentation on the Open Meetings Act at the St. Ignace Public Library. The program was attended by about 30 municipal leaders from the Eastern Upper Peninsula, and a few from the public. It gave an overview of the public's right to have access to meetings of governmental bodies.

"The public has a right to hear your comments or your deliberations toward a decision that's ultimately made. That's it in a nutshell," Attorney John Gillooly told about 30 public officials Wednesday, February 27.

The public's right to know was explained at an Open Meetings Act review in St. Ignace, where Mr. Gillooly said the law demands transparency and openness from public officials and employees. The presentation by the Detroit attorney was hosted by the City of St. Ignace for the public and officials from all area municipalities, and drew people representing many local agencies to learn more about protecting the public's rights.

Mr. Gillooly emphasized that public meetings are the only opportunity the public has to hear deliberations.

Mr. Gillooly advised boards to always allow time for public comments at meetings. He also stressed that public boards should provide minutes when people request them, that they should allow discussion of the agenda items as the board deliberates them, and that board members should discuss issues leading to decisions only at public meetings, not at the coffee shop or in a back room. All applications and interviews for public and government employment must be considered in open session, he said, however, seasonal help positions, such as lifeguards, can be filled without interviewing at a meeting.

Meeting notices must be posted, so the public is informed a meeting is to take place, and include a telephone number for the meeting venue.

"Push the envelope a little bit, people, and give the public plenty of notice," he said to the officials. "You've got to err on the side of caution."

Board meetings are open to the public by law must be open to the public to allow voters and taxpayers to see how decisions are made and to participate in the decisionmaking process. Laws like the Open Meetings Act, and the Freedom of Information Act protect the public against government secrecy. Violations of the Open Meetings Act are against the law because they bar public participation, he said.

Being open with the public, Mr. Gillooly said, will help keep public boards out of trouble. People found guilty of breaking the law will be fined no more than $500 per incident, he said, but the real hurt comes from public exposure of the violation and the thousands of dollars in court costs and legal fees that will be charged to the guilty party.

The "broad nature" of the Open Meetings Act and how people interpret the law is causing many lawsuits these days, he said. Most lawsuits now are the result of public officials and employees blowing the whistle on each other for violations of the act, with fewer complaints coming from the public or newspapers.

Mr. Gillooly reminded the audience that items purchased with public money are public property, and therefore subject to FOIA. He strongly recommended elected officials and public employees conduct any personal business away from public property such as public computers and telephones.

"If you want to do business in a private manner, don't do it on a public phone," he said. "You don't have the right to privacy on government phones."

The same is true with e-mailing, he said.

"E-mails are very, very much discoverable today. All e-mails are stored somewhere," he said, and can be easily accessed by a capable computer technician. He cautioned officials that if e-mails are used inappropriately, they can get the sender into trouble, even after they are deleted.

Action taken at meetings held in violation of the Open Meetings Act can be remedied by holding the meeting correctly and "re-doing" the action, Mr. Gillooly said.

When Is It a Meeting?

A meeting is when a quorum of a board is present. For a five-member board, a quorum is three members. For a seven-member board, it's four. If a quorum meets in the same place and discusses or deliberates decisions on public policy, it is a public meeting, he said, and must abide by the Open Meetings Act. Occasionally a quorum of public officials might meet at social gatherings or by chance. If those meetings are not designed to avoid the Open Meetings Act, Mr. Gillooly said, and officials are not discussing public business, policies, and procedure, they are exempt from the act, but, he cautioned, "you can't all agree to meet for coffee at the local shop and discuss city business."

When a meeting is called and there is no quorum at the meeting place, members should adjourn and save discussion of public business for a meeting where a quorum is present.

"My advice is, if there's not a quorum present, the meeting is done," he said. "I recommend moving to adjourn the meeting."

In cases where officials meet by chance, for example at a social gathering, but the conversation turns to public policy matters, it is the responsibility of those officials to remind each other, "we can't talk about this outside of an open meeting," and change the subject, he pointed out.

Setting an Agenda

"Only minor adjustments to the agenda at the time the meeting is called to order should be made," Mr. Gillooly said.

Agendas should be published before the meeting, especially if the items on the agenda have any significance to the public, so they have an opportunity to participate, if they choose.

He encouraged boards to allow public comments on each item of the agenda. Agendas must allow a time for public comment, when the board invites the public to speak if they want. Comments can be on any topic.

Rights of the Public

To Attend and Speak

Everyone is welcome to attend a public meeting. The board cannot bar non-residents from a meeting, he said, and people must not be required to sign in to attend a meeting.

"The courts have ruled this has a 'chilling effect,'" Mr. Gillooly said of a sign-in requirement, and it would infringe on the public's right to attend and observe anonymously, if they want.

A board can, however, require a person to identify themselves before speaking at the meeting. It gives the board and the public an understanding of where the person comes from and what their perspective is in addressing the public body, he added.

He strongly encouraged municipal boards to allow people to talk, but said firm guidelines can be set for speaking at public meetings. A minimum two-minute time limit for public comments was encouraged, although boards may allow people to speak more if they want. Boards can also limit comments to one per person on a given subject, but cannot limit the number of people making comments.

"If everyone in the auditorium wants to speak on a given issue, you should let those people speak," he said. "You do not have to be a resident to speak. You do not have to be a constituent. It's the right of the public to be present and to participate, not the right of a resident or a landowner to be present and to participate."

To keep meetings orderly and give everyone equal opportunity, the chair of the meeting should firmly enforce time limits, if there are many people who want to talk, he suggested. He cautioned against setting a time limit on the public comment period, however, recommending, instead, that the board schedule time during the meeting to speak. Some boards make a public comment period part of the regular agenda. People speak on whatever they want, whether it is on the agenda or not, but he discouraged officials from getting drawn into a question and answer session. If someone asks a question, take a note and tell them you will get back to them, he recommended.

"You're responsible for doing a lot of listening in your roles, as well, and not [only] decision-making," he said. "And you have to hear what the public says a lot of times and sit back and 'give an ear,' and you shall be heard."

Who Must Comply with

Open Meetings Act?

All public bodies must comply. They are defined as "any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council" empowered to exercise governmental authority or perform an essential public purpose.

Committees created and assigned public business by an official public body are subject to Open Meetings Act stipulations, such as posting the meetings and keeping them open to the public, Mr. Gillooly said.

Notifying the Public of a

Meeting; Emergency Meetings

The public must be notified that a meeting is to take place.

Newspapers are entitled to receive meeting notices free of charge. Meeting notices for the general public should be posted in an accessible, public place (usually a town hall or community bulletin board), advertised in a newspaper, and posted on the municipal Web site. Notices can also be posted at other places considered appropriate by the public body. People can request notices be sent to them.

Public bodies with a regular schedule of meetings must post their schedule within 10 days of the first meeting held that calendar or fiscal year. The notice should state the dates, times, and places of regular meetings.

If the regular schedule of meetings is changed by a public body, the notice of the changes, including the new date, time, and place of the meeting, must be posted within three days of the decision to change.

Special meetings and rescheduled regular meetings must be posted at least 18 hours before the meeting.

"There is no reason to blow [the 18-hour rule], folks," Mr. Gillooly said. "You can thumbtack up the notice for these."

If a meeting is tabled or adjourned and reconvened later, the follow-up meeting must be posted, he added.

In rare cases, an emergency meeting can be called without complying with the notice requirements of the Open Meetings Act.

"It's usually, almost always, limited to natural disasters," Mr. Gillooly said of the emergency meeting rule, and be "a severe and imminent threat to the health, safety, or welfare of the public," when a two-thirds majority of the board decides delaying the meeting would be detrimental to the public.

The police chief resigning or firing the city manager are not reasons to avoid the Open Meetings Act by calling an emergency meeting, he said.

Keeping Minutes,

Making Them

Available to Public

Minutes must be recorded, whether the meeting is open or closed, he said.

Meeting minutes should at least contain the date, time, place, members present, members absent, the reason the meeting was called, decisions made at the open meeting, purposes for closing a meeting, and all roll call votes taken at the meeting.

Proposed or "unofficial" minutes must be available to the public within eight business days after the meeting. Approved or "official" minutes must be available within five business days of the meeting at which they were approved.

Mr. Gillooly said the public can subscribe to minutes for a period of time, and thus receive them on a regular basis without having to request them again and again.

The Freedom of Information Act allows people who live out of the municipality to request meeting notices and minutes.

Closed session minutes must be kept by the clerk and cannot be released to anyone, except by an order of the court. Minutes of closed sessions must be kept for one year and one day, after which they can be destroyed.

Mr. Gillooly is an attorney with Garan Lucow Miller of Detroit. He majored in criminal justice at Lake Superior State University and worked at Judge Nick Lambros' office in Sault Ste. Marie before beginning his legal career.

Attending his discussion at the St. Ignace Public Library were representatives from the City of St. Ignace and Downtown Development Authority, St. Ignace City Police, St. Ignace Area Schools, Clark Township, Mackinaw City, Eastern Upper Peninsula Regional Planning and Development, Eastern Upper Peninsula Intermediate Schools District, Mackinac County Board of Commissioners, and the Mackinac County Prosecuting Attorney's office.