Speaking of Open Meetings: Communications Issues Get Some Sunshine
(C. Proxmire, Oct. 15, 2012)
The public has a right to attend public meetings and to have their voices heard. This can be an intimidating prospect for some people, especially if the rules are not clear or the public body is less welcoming of public input.
Understanding your rights is the first step in making sure you are able to take part in the democratic process. It is also a tool for public officials to help ensure that they are getting feedback and information they may need in making decisions. When they follow the act and explain procedures to the public it helps everyone gain confidence that the body is operating with transparency and accountability.
Eleanor “Coco” Siewert is a Professional Registered Parliamentarian with the National Association of Parliamentarians. She is a trainer for municipalities in parliamentary procedure and the Open Meetings Act and served two terms as the mayor of Birmingham, and has a Master’s degree in Dispute Resolution from Wayne State University.
On October 8, she was the guest of the Political Action Committee CLEAR, which is made up of parents and other residents who want to see more transparency in Ferndale Public Schools. CLEAR is endorsing four School Board candidates this year, and information on that election, including profiles for all candidates, can be found in our Voter Info. Section.
Speaking as an independent expert, Siewert gave an overview of the Open Meetings Act, and then answered questions. Many of the questions pertained to Ferndale Schools, though Siewert’s presentation and answers were given in general terms. The OMA applies to all public bodies, including school boards and city councils. It’s also a pretty straight-forward document.
“It’s only five pages long,” she said. “And if you get questions you should just read it.”
Laws that encourage government transparency are known as “Sunshine Laws.” The idea behind these laws is that sunshine is the best disinfectant, and that pubic business should be conducted publicly.
The Government in the Sunshine Act was passed in September of 1976 and is one of several Freedom of Information Acts. “The newspapers, it was particularly the Detroit Free Press, in the 70s that said we should have a sunshine law,” Siewert said. “They took the lead to have this in Michigan.” The laws are clearly important to journalists, but they are structured so that any member of the public has a right to information and to participate in meetings. The Act does not cover individuals who are imprisoned serving a sentence a county, state or federal level correctional facility.
To read Michigan’s Open Meetings Act and other FOIA-related Acts, download this pdf from the State Legislature http://www.legislature.mi.gov/documents/publications/openmtgsfreedom.pdf.
Public Notice.
The Open Meetings act requires that notice be given before meetings, and that the notice must be accessible to the public. Online notices are not sufficient because not everyone has access to the internet. A list of regular meetings, including dates, times and locations must be posted within ten days of the first meeting of the new calendar or fiscal year. If there is a change in the schedule, it must be posted within three days of the meeting when the change was made. 
For special meetings, there must be public notice at least 18 hours beforehand and it must be in a place where it can be publicly viewed for the entire 18 hours. This means that it cannot be hidden in a building that is locked for part of that time. Emergency sessions may be held without public notice if public health, safety or welfare is severely threatened and if 2/3 of the public body votes to hold the meeting.
Closed Session.
Public bodies may go into closed session, but only for a limited number of reasons, which are:
(1) 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. If the employee wants the discussion public, it is their right to have it be so. Also, a board cannot go into closed session to discuss an employee without their knowledge.
(2) For strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement if either negotiating party requests a closed hearing.
(3) To consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained.
(4) 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.
(5) 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, 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.
(6) To consider material exempt from discussion or disclosure by state or federal statute. But note – a board is not permitted to go into closed session to discuss an attorney’s oral opinion, as opposed to a written legal memorandum.
Even if a closed session is held, the actual decision made must take place in an open session. A closed session meeting must start out publicly and there must be time for public comment and a vote taken before going into closed session.
One question arose as to whether committees or sub-committees should be allowed to go into closed session. “Why would a sub-committee need to go into closed session?” she asked, seemingly surprised by the question. She explained that sub-committees and special committees, like those whose members are appointed by elected officials, are tied to the same rules as the authority that created them.
Recording and Photography.
Citizens are permitted to attend public meetings and they are allowed to record them or take photographs, as long as their activity does not disrupt the meeting. One example of a potential violation happened on Nov. 21, 2011 when Ferndale Schools Superintendent Gary Meier stopped this reporter from taking pictures of a School Board meeting, stating that only approved school personnel were allowed to take photos. When challenged about that he claimed it was a Board policy. In response to an email to the District asking for clarification, Media Relations specialist Stephanie Hall said that banning photography is not a policy, rather a personal request that Meier had made.
To put this situation in context, this was not the only roadblock The Ferndale 115 News has experienced with attempting to cover Ferndale Schools. Other examples include Hall stating on several occasions it is policy that reporters cannot speak to any teacher, staff, administrator or board member without going through her. She recently clarified as only a personal request when challenged to produce the policy. Another recent example was when Coolidge Principal Eric Bruner lied to the press and to a parent about dress code policy and the parent’s right to have a non-family member sit in on a meeting with the principal. While these are not OMA violations, they have created stress between the District and this publication, to the detriment of the public and our ability to cover school issues. Parents and members of the public have come up against similar roadblocks, and there were plenty of questions for Siewert on other issues of transparency.
Terms of Public Comment
Another aspect of the Open Meetings Act that has been a source of confusion is whether the public has a right to speak, and on what terms. Most recently community members were upset that a parent was gaveled down at the podium during public comment because she failed to fill out the topic section on the form which the District requires people to fill out before speaking.
When Board President Keith Warnick told her she could not speak because the topic was blank, she gave the topic verbally, but was still not allowed to speak at that time. Instead she was told to “sit down and wait,” and the Board made her wait over two and a half hours to give her comments. Only one Board member, Nan Kerr-Mueller, stood up for her right to speak. And though she was eventually permitted to speak, the incident raised questions about what is allowed and what is not in terms of restricting public comment.
Coincidentally Ferndale Schools has ceased re-broadcasting the School Board meetings as they used to on the school’s cable channel, because the equipment is broken. Though the meetings do air live, and parent Barb Landry thought quickly to record the dismissal on her cell phone. Parents at the OMA event were concerned about why this parent was forced to wait, and wanted to know what their rights are in such situations.
Siewert explained that citizens have a right to speak and that every meeting must have time for public comment. There is no guideline as to whether it needs to be at a certain time or not. Many public bodies have public comment at the beginning for a set amount of time, and those not able to speak at that time can be heard at the end of the meeting. Their time can be limited, usually to under a few minutes, but they cannot be denied unless they violate rules of the body. The body can create rules, but they cannot infringe on the public’s right to speak.
Someone questioned whether someone could be denied speaking because what they say is considered irrelevant or repetitive. Siewert explained that these things are subjective and that of course people are going to think what they have to say is unique. She explained that the person running the meeting may request that people not be repetitive, but that if someone still wants to speak they can. There are cases where meetings go for hours and hours because of public comment, which is why it may be a good idea to have them at the end, or where there is a certain amount of time is allocated in the beginning and more is allowed at the end.
Cards Filled out to Talk?
Residents also raised concerns about the use of cards for people addressing the public body. In the recent example of the parent that had to wait 2 ½ hours, she had been put off because she failed to include a “topic” on the card. Siewert said that cards are not common in public meetings, but that sometimes school districts use them. She said it would be a legal grey area if someone were denied the ability to speak because of an improperly filled out card, but that public bodies should err on the side of being open and letting people speak because it is an unnecessarily legal risk not to let them.
Emails and Texting.
The prevalence of emails and text messaging also calls into question when outside discussion violates the Open Meetings Act. Siewert explained that the Attorney General has clarified this by stating that texting and emails cannot be used for deliberating, either in the meeting or at any other time. That means not exchanging texts while sitting at the meeting, or logging into a chat room to discuss topics not in the public’s view. The Attorney General has also stated “Moreover, the use of electronic communications for discussions or deliberations, which are not, at a minimum, able to be heard by the public in attendance at an open meeting are contrary to the OMA’s core purpose – the promotion of openness in government.”
Non-Committee Members in Meetings.
One question that was asked during the presentation was if elected officials could attend committee meetings that they are not sitting on. Siewert explained that non-committee members could attend, but that they could not participate, only observe.
Repercussions to violating the Open Meetings Act.
Under the OMA, the Attorney General, County Prosecutor or any person can bring a civil action in circuit court to challenge the validity of the action taken by the public body. The action may be invalidated, and the person who brings the suit could be awarded court costs and attorney fees. The court can also issue an injunction compelling the body to comply with the law. The OMA also provides for criminal misdemeanor penalties against any public official who intentionally violates the act. Penalties could be as high as 90 days in jail and $1,000 for the first offense, up to 1 year and $2,000 for the second. Public officials who intentionally violate the OMA can also be subject to personal liability up to $500 and court costs and actual attorney fees of the person who sued.
Siewert based her presentation on Don Schmidt’s chapter on OMA from Local Government Law and Practice in Michigan. The 19 chapter publication is a publication by the Michigan Municipal League and the Michigan Association of Municipal Attorneys. Mr. Schmidt is a partner in the law firm of Miller Canfield Paddock and Stone.
To read Michigan’s Open Meetings Act and other FOIA-related Acts, download this pdf from the State Legislature http://www.legislature.mi.gov/documents/publications/openmtgsfreedom.pdf.
The rules for public meetings of Ferndale Schools can be found at http://www.neola.com/ferndale-mi/. For Hazel Park Schools the policy is at http://www.hazelpark.k12.mi.us/images/stories/admin_bldg/board_of_education/Board_Policies/board_policy.pdf.
The City of Ferndale has this guide on their website – http://www.ferndale-mi.com/Government/AddressingCouncil.htm. The City’s site has the following advice: “Don’t apologize for taking the Council’s time – It’s your right to ask how your government is run!”
