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Lower Profile Lame Duck Legislative Actions and Inactions Affecting Public Bodies

By Mark W. McInerney / Jan 11, 2013

The lame duck session of the Michigan Legislature that ended early on December 14, 2012, featured a large number of highly publicized legislative actions affecting public bodies.  Such developments as the new right-to-work law, the new emergency financial manager law, the bill permitting concealed weapons on certain public property that was subsequently vetoed by the Governor, and others, received great notoriety, and will have major effects on public bodies going forward.

Several other legislative actions and inactions in the lame duck session, however, will also affect public bodies, but have not received much public discussion.

HB 5459 became Public Act 528 on December 27, 2012.  Act 528 amends the Open Meetings Act to clarify two issues with respect to notice of public meetings, and to impose new requirements upon "emergency" meetings.  The Act provides that notices of public meetings must be posted at least 18 hours before the meeting "in a prominent and conspicuous place" at the public body's principal office.  The durational requirement for posting of notice of meetings - i.e., the 18 hours required for a special meeting - "is the time that the notice is required to be accessible to the public."  These requirements apparently respond to a 2011 Court of Appeals decision, and are designed to avoid postings inside buildings that are closed for much of the time during which the notice is posted.  More importantly, meeting notices must now also be published on a public body's website where the body in fact maintains a website that is updated at least monthly.  Most public bodies now routinely post meeting notices on their websites, and this legislative action recognizes electronic posting as perhaps the most effective way to get actual notice to the public.  In addition, the Act imposes new openness requirements with respect to "emergency" meetings of public bodies, which may be held upon less than 18-hours public notice, including a requirement for a specific explanation of the "severe and imminent threat to the health, safety or welfare of the public" believed to justify proceeding on an emergency basis.

In two other areas, the Legislature's failure to act is important to note.  The Legislature declined to essentially prohibit remote attendance at meetings of public bodies by members of those bodies.  The Open Meetings Act, enacted before the wide availability of equipment that permits remote attendance, is silent on the issue, and attorneys advising public bodies differ on whether remote participation is permissible.  In February 2012, a bi-partisan group introduced HB 5335, which would have amended Section 3 of the Open Meetings Act to provide that a meeting is not considered open to the public - and thus does not comply with the Open Meetings Act - if a member of the public body casts his or her vote on a decision of the body without being physically present.  Under this bill, then, a member of a public body could not vote remotely on a matter coming before the body, while the question of whether that member could participate remotely would remain unanswered.   HB 5335 easily passed the State House on February 28, 2012, but then surprisingly never made it out of the Senate Committee to which it was referred.  HB 5335 died upon the final adjournment of the Legislature, but can certainly be reintroduced in the new Legislature.

In the fall of 2012, several bills relative to the Freedom of Information Act were introduced.  HB 5879 would have: increased burdens on public bodies by limiting copying charges to 10 cents per page and banning any charge for inspection of documents; specified when the requested documents - as opposed to a response to a request - are due, with public bodies being penalized by reductions of  copying charges if the production of copies were untimely; required - rather than permitted - an award of attorney fees to a requestor who prevailed "in all or part" of a court challenge to a public body's action; removed a court's ability to award attorney fees to a prevailing public body; and  increased the permissible fine for an "arbitrary and capricious" action by a public body.  HB 5895 would have established a commission to review FOIA and recommend changes, to investigate a public body's FOIA policies or determination in a particular case, and, upon citizen request, to issue an opinion binding on the public body and the citizen on a specific FOIA issue.  HB 5964, finally, would have made the intentional destruction or concealment of a document that is the subject of a pending FOIA request a crime - a 2-year misdemeanor for a first offense, and a 5-year felony for a second and subsequent offense.  These bills generated some concern when they were introduced, but none ultimately passed either house of the Legislature, and are thus dead for now.  Any or all may be re-introduced in the new legislative session about to begin.

If you have questions about any of these issues, please contact your Clark Hill Education or Municipal Law attorney.