New Executive Order Temporarily Suspends Certain Requirements of Open Meetings Act

On March 18, 2020, Governor Whitmer issued Executive Order 2020-15, which temporarily relaxes certain requirements of the Open Meetings Act (“OMA”) as a result of the COVID-19 pandemic. The goal of the Order is to further reduce the need for contact among members of the public while permitting the public business to continue being done in a transparent fashion.

The Order is applicable to all public bodies subject to the Open Meetings Act, which would include boards of education and municipal councils. Effective immediately, and through April 15, 2020, strict compliance with Section 3 of OMA will no longer be required. Specifically, public bodies are permitted to conduct meetings entirely electronically, such that no elected members of the public body need to be physically in attendance. The meeting must be held in a manner that permits two-way communications so that members of the public body can hear and be heard by other members of the public body, and so that members of the general public can hear members of the public body and can be heard by members of the public body and other participants in the meeting during a public comment period. The order goes on to add that the public body “also may use technology to facilitate typed public comments that may be read to or shared with members of the public body and other participants.” The use of the word “also” makes it unclear if public comment may be limited to written questions, but the sense of the order is that the public must be able to choose oral or written means of making public comment. The public body may enact or maintain reasonable rules regulating public comment.              

The Order also requires that the public body must provide advance notice to the public, using its website if it has one or using other notice procedures under OMA, of the means that will be utilized, as well as detailed procedures by which the public may participate in the meeting electronically and may contact the members of the public body to provide comment. The public body is encouraged (but not specifically required) to post an agenda before the meeting (not currently an OMA requirement), and is also urged (but not specifically required) to take all votes by roll call to avoid questions about how each member voted. 

The Order further suspends the statutory requirement that boards of education hold at least one meeting per month.

The Order specifically provides that any of its provisions “will prevail over any conflicting provision of a local charter, ordinance or rule.” It would have been preferable for the Order to also refer to school district bylaws or policies, but presumably, they are included within the category “rule.”                 

If you have questions about this or other issues, please contact Mark McInerney at mmcinerney@clarkhill.com or (313) 965-8383, or another member of Clark Hill’s Education and Municipal Law Practice Group.