Dear Editor:
An earlier version of this material was presented to the Chelsea City Council on June 12, 2023, last modified June 18, 2023
Summary
Some public meetings of Chelsea’s boards, commissions, and committees (hereafter, “boards”) apparently violate the Open Meetings Act (OMA). Council action is required to remedy this deficiency.
In reaching these conclusions, the following questions were addressed:
Are all Chelsea public boards in fact subject to the OMA? If not, which are immune and why?
Do any Chelsea boards currently violate the OMA? If so, how?
What action is necessary?
Chelsea Boards and the Open Meetings Act
Are Chelsea boards subject to the OMA? The Act itself states:
”All decisions of a public body must be made at a meeting open to the public.”
This seems definitive. The Act defines the important terms in this statement: “public body”; “meeting”, and “decisions.” Definitions of the first two terms are straightforward. The definition of “Decisions” on the other hand is complex and requires 38 words in eight clauses of Act text. Fortunately, to avoid the complexities of legal interpretation, municipalities have a tool to help determine how to remain in compliance: the Michigan Open Meetings Handbook (OMH), issued periodically by the Michigan Attorney General. One section of the OMH addresses those boards that are not implementing public policy, but merely assisting their parent municipalities:
“the OMA does not apply to boards if they ‘are merely advisory or only capable of making ‘recommendations concerning the exercise of governmental authority.’”
This seems definitive, but there are problems with each of the criteria:
“Advisory” boards are not defined in the OMA. Indeed, the word itself does not appear anywhere in the OMA.
The term “recommendation” is included in the OMA as one possible kind of “decision,” fulfilling a requirement for application of the OMA, since decision can be: “motion, proposal, recommendation, resolution, order, ordinance, bill, or measure.”
Since neither of the standards for “advisory” boards have any basis in the Act itself, the creation of the “advisory” category must depend on case law developed over the years. Unfortunately, the one example cited in the OMH (Booth News v. U of M Regents) was decided for the Plaintiff, voiding the defendant’s claim of an advisory exception to the OMA, and so provides no precedent for the current practice as stated in the OMH.
Conclusions:
The OMH is not a reliable guide to the application of the OMA to “advisory” boards.
There is no obvious predicate for the existence of an advisory exemption to Open Meetings standards in the Act itself.
Are there any instances of OMA violations?
In any case, does all this matter? Aren’t Chelsea boards in compliance with the OMA? In fact, some boards have been in violation.
Examples:
- inadequate noticing (possibly). Noticing is usually a problem when boards are first formed and documentation is lacking to be definitive at this late date
- limitations on or no public comment.
- Agenda have not been prepared for some meetings (not itself a violation), making it impossible for the public to determine when public comment was scheduled or even to be permitted at all. An example is the May 17 meeting of the Strategic Planning Group.
- inadequate, late, or missing minutes. The OMA requires production of draft and final minutes on a strict schedule. These postings are consistently late or missing.
- Violations of public comment and minutes have taken place at at least one meeting at which there was no voting, thus theoretically eligible for an OMA exemption (no “decisions” being made). It is not clear if the Council is taking this position. This needs to be clarified.
Council Road map
Suggested action depends on the Council’s position on its boards:
If the Council’s position is that some of its boards are “advisory boards” and thus exempt from the OMA, it needs to explain to the public its rationale in legally acceptable terms. For example, Council could forbid the board from acting upon any “determination, action, vote, or disposition” through Council-approved board bylaws or other controlling authority.
Otherwise: City Council should direct City boards to conform to the OMA, so stating in Council-approved board bylaws or other controlling language.
Next Steps
These matters were brought to the City Council at the June 12 Council meeting. There was no substantive comment. After the meeting, Mayor Pacheco declined to permit the author to contact the City Attorney, as is her right. Other comments by the mayor imply that the City Attorney is working on an opinion on the status of Chelsea’s boards as “advisory” or not, and thus may not be subject to the OMA. We eagerly await publication of this opinion.
In the interim, we believe it is unacceptable to allow the current uncertaintainty to continue. Council should immediately direct all Chelsea boards to comply with the Open Meeting Act. If the Council intends to allow some boards to function outside the OMA using the “advisory” exception, they would be prepared to provide legal predicate for this position, which seriously violates standards of public accountability and transparency. The fact that an action may be allowable under law does not make it prudent.
The author is a longtime Chelsea resident and two-term Councilman. He is not a lawyer, and has not followed local politics since 2021. Attending (at friend’s request) one of the Council board meetings recently; he found the proceedings sufficiently alarming that he ended his self-imposed exile. Upon further investigation, this letter was a result.
Rodney Anderson
Chelsea, MI
