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Open Meetings Act Update: "Informal Meetings;" Remote Participation

By Mark W. McInerney / May 02, 2016

A recent Court of Appeals decision regarding Open Meetings Act requirements for "informal meetings" of the University of Michigan Board of Regents, and continued questions about whether members of public bodies can participate in a public meeting "remotely," occasion this update.

Detroit Free Press v University of Michigan Regents

On April 26, the Michigan Court of Appeals issued a published opinion confirming that the Board of Regents of the University of Michigan is permitted to conduct "informal" meetings in private, without complying with provisions of the Open Meetings Act. The Court of Appeals affirmed a decision of the Michigan Court of Claims, which itself was based on a 1999 Michigan Supreme Court decision arising from a presidential search at Michigan State University. The Free Press has indicated it plans to appeal, and suggests that its plan all along was to ask the Supreme Court to revisit its 1999 decision in the Michigan State case in view of what it believes are new concerns about openness of public decision-making processes.

Although the Supreme Court's handling of this matter may be useful in revealing the Court's current thinking about the Open Meetings Act in general, the University of Michigan Regents case does not affect school boards or other non-university public bodies. The primary basis of the 1999 decision was the constitutional status and protection given to the governing boards of public universities in Michigan. Article VIII, Section 4 of the Michigan Constitution provides that "formal sessions" of university governing boards are to be "open to the public," thus implicitly suggesting that "informal" sessions need not be open to the public. Sections 5 and 6 of Article VIII provide that the university governing boards are to have general supervisory authority over the day-to-day operations of the universities. The Supreme Court in 1999 held that the determination of whether a meeting was "formal" or "informal" was up to the governing boards, and that any directive that "informal" meetings be open to the public would interfere with the boards' constitutional right to supervise their own operations. The Court of Appeals reaffirmed those conclusions in the current case. The discretion accorded public universities is unique. Other public bodies, including local school boards, do not have the ability to meet behind closed doors except under the specific conditions for a closed session permitted by the Open Meetings Act. This decision should thus have no effect on meetings of public school boards.

Remote Participation at Board Meetings   

Passed in 1976, the Open Meetings Act did not fully anticipate the advances in communication that have occurred in the last 40 years. The Act is silent as to whether members of public bodies may participate in a meeting remotely, using electronic means. In a 1987 decision involving remote participation at a hearing (as opposed to a Board meeting), the Michigan Court of Appeals concluded that participation via teleconference was permissible where the public was able to hear comments by absent members, and particularly votes, using speaker phones. In his Open Meetings Act Handbook, Attorney General Schuette assumes that remote participation by Board members at meetings is permissible, recommending that when members are remotely participating any votes should be taken by roll call so there is no question how all members vote.

Since the Act is silent on this issue, and since some remote participation is generally regarded as acceptable, may all members of a Board participate in a meeting by teleconference? May a meeting take place with members of the public who attend looking at a telephone to which all seven Board members have called in from remote locations? In our view, proceeding in this manner would be unwise, would defeat the purposes of the Open Meetings Act, and would invite a court to step in to invalidate a meeting held under such circumstances. Commentators have generally recommended that at least a quorum of members be physically present, with additional members participating by teleconference. We agree with these views. We also recommend that board by-laws establish rules governing remote participation, requiring, in addition to the physical presence of a quorum, that a sound system be used that allows persons participating in the meeting to communicate with each other and persons attending the meeting to clearly hear the comments of members attending remotely, and that roll call votes be used exclusively when members are participating remotely.

During the last three sessions of the Legislature, consideration has been given to bills that would prohibit remote participation. Bills have come close to passage during the 2011-2012 and 2013-2014 sessions of the Legislature. During the current session, both houses of the Legislature in 2015 have passed by large margins similar but not identical bills that would largely forbid the practice. No effort has yet been made to reconcile the bills, so at the moment remote participation remains permissible.   

If you have questions about this or other Open Meetings Act issues, please contact Mark McInerney at (313) 965-8383, mmcinerney@clarkhill.com, or another member of Clark Hill's Education Law group.