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Recent MDHHS Order Impacts Meetings of Public Bodies

On March 2, 2021, the Michigan Department of Health and Human Services (“MDHHS”) issued another Gatherings and Face Mask Order (the “Order”). The Order went into effect March 5 and has implications for meetings of public bodies under the Open Meetings Act.

Effective March 5, indoor gatherings at “non-residential venues” are permitted when no more than 25 persons are gathered. Masks and social distancing are required. Presumably, this 25-person limit requires counting members of the public body and administrators who are present, which leaves room for probably no more than 15 members of the public. For some districts, this may be sufficient. Others who generally have a larger public turnout will find it difficult to meet face-to-face under this order.

Section 3 of the order provides, however, that gatherings at “entertainment and recreational facilities” are permitted so long as they do not exceed 50% of the capacity of the venue, up to a maximum of 300 persons. Under its plain language, the Order, therefore, permits public meetings to be held at any “entertainment and recreational facility” even if the amount of people exceeds 25. “Entertainment and recreational facilities” are defined by the Order as “auditoriums, arenas, cinemas, concert halls, performance venues, sporting venues, stadiums, theaters, night clubs, strip clubs, water parks, archery ranges, amusement parks, arcades, bingo halls, bowling centers, casinos, gun ranges, laser tag arenas, trampoline parks, and the like.”

For example, a school board meeting could take place at a school auditorium that seats 500 people so long as it does not exceed 250 masked and socially distanced persons. Given the attendance cap, an auditorium with an 800-person capacity would be limited to 300 attendees.

Public meetings that do not meet in an “entertainment facility or recreational facility” as defined in the order are subject to a limit of 25 people.

The new MDHHS order does not require a return to face-to-face meetings. We note, however, that under a statute enacted late in 2020, beginning March 31, 2021, remote meetings by the entire Board will no longer be permitted, and remote participation  by an individual member of the public body will be permitted in only three situations: 1) when the member is in military service; 2) when the member has a “medical condition,” defined as “an illness, injury, disability or other health-related condition” (and thus not limited to COVID-related conditions); or 3) or in the case of a “statewide or local state of emergency or state of disaster” “that would risk the personal health or safety or members of the public or the public body if the meeting were held in person.”

If you have any questions about this Order or its impact, please contact Mark McInerney, Jay Fleming, or another member of Clark Hill's Education Practice Group.