MACDC Intercounty Drain Procedures Training Open Meetings Act Lizzie Mills Fahey Schultz Burzych Rhodes PLC February 15, 2017 macdc.us

Why the Open Meetings Act? Accountability Transparency Responsibility Related to decision making related to: Paying invoices address maintenance issues approve permits or development review respond to PA 222 claims address FOIA requests incur costs of any kind Failure to meet the requirements of this state law can not only void the decision of the board, but also result in stiff civil and criminal penalties to the board as a whole and individual board members. macdc.us

The Basics All decisions of the drainage board must be made during a properly noticed public meeting macdc.us

What Makes a Meeting? A Quorum Physical Presence At A Meeting? Socializing? Electronic Communication? Physical presence at a public meeting is the gold standard. But OMA and the Drain Code do not directly address whether intercounty board members must be physically present in order to be counted for purposes of establishing a quorum. Michigan courts have held that OMA does not require physical attendance at a meeting, so long as the remotely connected board member can hear and be heard by all participants. Speaker phones, conference calling, Skype and other forms of video conferencing would generally satisfy this requirement. However, board members must be careful about technical difficulties that could lead to the loss of a quorum midway through a meeting or in the midst of a vote.   Legislation is frequently proposed that would require members’ physical presence to establish a quorum, although none have yet been successful. Because of this, it is important to periodically check with legal counsel to ensure remote attendance is still allowed. Additionally, it is MDARD’s current practice and the Attorney General’s current opinion that a quorum must be present on-site, which eliminates the opportunity to convene a meeting with a single board member at the meeting location and others participating by other technological means. Consult with the board’s own legal counsel before adopting or implementing telephone conference meetings as a standard operating procedure and be on guard that this exception to the rule of physical attendance does not swallow that rule entirely. Quorum Concerns Outside of a Public Meeting The OMA does not apply to a meeting of board members at a social or chance gathering or conference if that gathering was not orchestrated to avoid OMA’s requirements. Thus, board members are not prohibited from socializing with one another outside of meetings. However, this is a very narrow exception to OMA; board members still must not discuss issues or decisions before the board at these informal gatherings, because discussions (deliberations) on intercounty board issues may only occur at properly noticed meeting of the board. If a meeting is necessary to review bid details or discuss preliminary design or engineering concepts, the Board should consider assigning staff to attend in their stead, to avoid establishing a quorum at such a conference. macdc.us

Beware the Unintentional Meeting Traps for the Unwary Electronic Communications Reply All Round Robin Physical presence at a public meeting is the gold standard. But OMA and the Drain Code do not directly address whether intercounty board members must be physically present in order to be counted for purposes of establishing a quorum. Michigan courts have held that OMA does not require physical attendance at a meeting, so long as the remotely connected board member can hear and be heard by all participants. Speaker phones, conference calling, Skype and other forms of video conferencing would generally satisfy this requirement. However, board members must be careful about technical difficulties that could lead to the loss of a quorum midway through a meeting or in the midst of a vote.   Legislation is frequently proposed that would require members’ physical presence to establish a quorum, although none have yet been successful. Because of this, it is important to periodically check with legal counsel to ensure remote attendance is still allowed. Additionally, it is MDARD’s current practice and the Attorney General’s current opinion that a quorum must be present on-site, which eliminates the opportunity to convene a meeting with a single board member at the meeting location and others participating by other technological means. Consult with the board’s own legal counsel before adopting or implementing telephone conference meetings as a standard operating procedure and be on guard that this exception to the rule of physical attendance does not swallow that rule entirely. Quorum Concerns Outside of a Public Meeting The OMA does not apply to a meeting of board members at a social or chance gathering or conference if that gathering was not orchestrated to avoid OMA’s requirements. Thus, board members are not prohibited from socializing with one another outside of meetings. However, this is a very narrow exception to OMA; board members still must not discuss issues or decisions before the board at these informal gatherings, because discussions (deliberations) on intercounty board issues may only occur at properly noticed meeting of the board. If a meeting is necessary to review bid details or discuss preliminary design or engineering concepts, the Board should consider assigning staff to attend in their stead, to avoid establishing a quorum at such a conference. macdc.us

What’s included in the posting of notice? macdc.us

Advisory Committees and OMA macdc.us

Determine time, date, and location for the meeting Posting Notice Determine time, date, and location for the meeting Content of the notice When and Where to Post the Notice Affidavit of Posting macdc.us

Notice Timing Special Meetings Regular Meetings At least 18 hours before the meeting Regular Meetings For regular meetings set on annual basis: post within 10 days of the first meeting of the year For changes to schedule: post within 3 days of the meeting at which change is made macdc.us

Meeting Location Available to the general public macdc.us Calling a meeting at the site of the drain itself presents concerns as to whether the meeting is truly “available to the general public” due to accessibility issues, including terrain, weather, and distance to the drain. If meeting at the drain is too challenging for the public to attend, the OMA may be violated. If the intercounty drainage board desires to inspect a drain during a meeting, the board should set the meeting at a public place, open the meeting, recess the meeting for a site visit to the drain, complete the site visit, and reconvene the meeting when the site visit is completed. It is crucial that board members do not discuss matters related to the drain or any upcoming decisions about the drain during the site visit; those matters may only be addressed once the meeting is reconvened at the public location. Similarly, if the meeting location is not large enough to accommodate the public who wishes to attend, the OMA may be violated. If public attendance at a meeting overwhelms the space, the meeting should be adjourned to a different location within the same building, if possible. macdc.us

Public Participation and Removal Rules for Participation Time Limits Speaker Cards Microphones, Recordings, & TV (Oh, my!) Removing a member of the public macdc.us

Closed Session Meetings What Can Be Discussed—And How An intercounty drainage board may only call a closed session for certain limited purposes and only if specific voting occurs. A board may, for instance, call a closed session: To consider the dismissal, suspension, discipline, charges brought against, or evaluation of a public officer, employee, staff member, or agent if the named person requests a closed hearing Requires only a majority vote To consider the purchase or lease of real property up until the time an option to purchase or lease is acquired Requires 2/3 roll call vote To consult with legal counsel regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect To consider material exempt from discussion or disclosure by state or federal statute (including a written legal opinion within the attorney-client privilege) Motions to go into closed session should cite the permissible purpose for doing so. It is important to understand that the decision to go into closed session is a permissive one: the board may also determine to address any of the above issues in open session. However, in the case of opportunity to receive attorney-client privileged communication or counsel, it is advisable to proceed to closed session in order to retain and preserve the sanctity of the attorney-client privilege. (This is further accomplished back in open session by motions to “proceed as discussed in closed session” or to “authorize legal counsel to proceed as discussed in closed session.”) Who Can Attend Closed Sessions The board may bring staff, consultants, or other private citizens into the closed session to aid in deliberations. The board may exclude all others from the closed session and, if an individual refuses to leave, the board may recess and move the closed session to another location or rely on law enforcement to forcibly remove him or her. Consensus and Decision-making – Open or Closed Session While board members may absolutely provide feedback and input during a closed session on whatever topic is presented to the board during the closed session, and even build the consensus of the members during that closed session, the board may not make any actual decision in the closed session. To take action of any kind, including making a particular decision on an issue of strategy, policy, etc., the board must close the closed session and re-enter its open meeting. It is acceptable to vote in open session on a matter such: “Motion to authorize legal counsel to proceed as discussed in closed session.” The Chair may declare when the closed session shall end and will typically do so based upon when the discussion has reached its natural end or the board is prepared to make a decision. macdc.us

Minutes Content Approval Availability Special note on closed session minutes macdc.us

Joint Meetings Occasionally, the intercounty drainage board may have a need to meet concurrently with other public bodies. Notice Decision Making Minutes macdc.us

Consequences for Violating Oma A date with a judge Compel compliance or prevent further noncompliance Challenge a decision already made Civil and criminal actions for intentional violations A civil action to challenge a decision already made A decision may be challenged if: It was made at meeting held at a place unavailable in some way to the general public or The board deliberated on the decision outside of a meeting open to the general public or The board failed to give proper notice of the meeting where the decision was made (if the circuit court decides that the failure interfered with substantial compliance and impaired the rights of the public) This type of challenge must generally be filed with the circuit court within 60 days after approved minutes of the meeting are made available to the public. If the decision involves the board’s approval of contracts, receipt or acceptance of bids, making of assessments, bond procedures, or borrowing proposals, such a challenge must be filed within 30 days. A civil action to compel compliance or prevent further noncompliance with the OMA. If an intercounty drainage board does not comply with the OMA in some more systematic way, the board may be subject to a civil lawsuit to either compel compliance, or stop the board from any further non-compliance. If a court finds that the board is not complying with the OMA, it must pay the opposing party’s court costs and actual attorney fees for the action. Civil and criminal actions for intentional violations of OMA A board member who intentionally violates OMA is personally liable in a civil action for damages up to $500 and must pay the opposing party’s attorney fees and court costs. This claim must be brought within 180 days from the date of the violation and could be joined with an action to compel compliance or prevent further non-compliance. A board member may also be criminally liable for intentional violations of OMA, which is a misdemeanor subject to a fine up to $1,000. If that board member violates the OMA again in the same term of office, he or she is guilty of another misdemeanor, and will be fined up to $2,000, face imprisonment for up to a year, or both. macdc.us

Correcting an OMA Violation: Reenactment? If there was a deficiency in the procedure by which the intercounty drainage board made a decision, the board may generally reenact the disputed decision in conformity with the OMA. The reenacted decision validates the decision and is effective from the date of the reenactment. Example. The intercounty drainage board called and both timely and properly posted a meeting. At that meeting attended by the public, the board voted on an issue. The board did not record this decision in its minutes. This OMA violation can be cured if, at the next meeting, the board reenacts the vote and properly records it in the minutes. If a board reenacts a challenged decision before being ordered to do so by a court may be able to avoid the requirement to pay the challenger’s attorney’s fees macdc.us

Questions? Helen Lizzie Mills Fahey Schultz Burzych Rhodes PLC 4151 Okemos Road, Okemos, MI 48864 Email: hmills@fsbrlaw.com Tel: (517)381-0100 Website: www.fsbrlaw.com   macdc.us