March 19, 2020
Pursuant to Executive Order 2020-15 (“EO 2020-15”) that was released on March 18, 2020, Governor Whitmer temporarily suspended certain rules and procedures required by the Michigan Open Meetings Act (“OMA”) relating to physical presence at meetings. The rules apply until April 15, 2020 at 11:59 pm. The Governor recognized that public bodies, such as the Foundation Board, must continue to “conduct public business during this emergency, including actions to respond to COVID-19, and the general public must be able to continue to participate in government decision-making without unduly compromising public health, safety, and welfare.”
A summary of the requirements as well as some additional commentary is as follows:
- Meetings May Be Held Entirely Electronically. A meeting of a public body may be held electronically, including by telephone or video conferencing, in a manner in which both the general public and the members of the public body may participate by electronic means. Thus, the public body no longer has to have a “physical location.” Members of a public body and of the general public participating electronically will be considered present and in attendance at the meeting and may participate in the meeting as if physically present at the meeting. During an electronic meeting, members of the public body are urged to take all votes by roll call to avoid any questions about how each member of the public body votes.
It would be a “best practice” for each member of the public body to identify who he or she is before speaking. Keep in mind that members of the public can listen in anonymously. However, the public body should adopt rules for the public comment period for these meetings.
- Meetings Must Have Two-Way Communication. A meeting of a public body held electronically must permit two-way communication so that both members of the public body and the public participants can be heard. 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 public body may not limit or restrict the rights of the press or other news media.
- Advance Notice of the Electronic Meeting. If a public body directly or indirectly maintains an official internet presence (i.e., has a website), the public body must post “advance notice” of a meeting held electronically on a portion of the public body’s website that is fully accessible to the public in addition to any other requirements for notice in the OMA. The public notice on the website must be included on either the homepage or on a separate webpage dedicated to public notices for non-regularly scheduled public meetings or electronic meetings and accessible through a prominent and conspicuous link on the website’s homepage that clearly describes its purpose for public notification of those non-regularly scheduled or electronic public meetings.
The EO uses “advance notice” but also states that the notices shall otherwise comply with the OMA. Pursuant to the OMA, all public notices shall contain the name of the public body to which the notice applies, its telephone number if one exists, and its address. In addition, a public notice for a public body shall always be posted at its principal office and any other locations considered appropriate by the public body.
In addition, for special meetings, the notice requirements of the EO should be posted at least 18 hours before special meetings. For any regularly scheduled meeting between today and April 15, 2020, our recommendation is to place an EO compliant notice on the website as soon as possible as stated more fully below.
- Additional Notice Requirements. Notice of a meeting of a public body that will be held electronically must include all of the following:
- An explanation of the reason why the public body is meeting electronically.
- Detailed procedures by which the public may participate in the meeting electronically, including a telephone number, internet address, or both. This is the portion of the notice where the public body should list its instructions of how to call into the meeting or how to connect with any video meeting.
- Procedures by which persons may contact members of the public body to provide input or ask questions on any business that will come before the public body at the meeting.
- Procedures by which persons with disabilities may participate in the meeting.
- Other OMA Requirements Still Apply. As with any meeting, the right of a person to participate in a meeting of a public body held electronically includes the right to tape-record, to videotape, to broadcast live on radio, and to telecast live on television the proceedings of the public body at a public meeting. The exercise of this right does not depend on the prior approval of the public body. However, a public body may establish reasonable rules and regulations to minimize the possibility of disrupting the meeting.
A public body may not require a person as a condition of participating in a meeting of the public body held electronically to register or otherwise provide his or her name or other information or otherwise to fulfill a condition precedent to attendance, other than mechanisms necessary to permit the person to participate in a public comment period of the meeting.
A person must be permitted to address a meeting of a public body held electronically under rules established and recorded by the public body. A person must not be excluded from a meeting held electronically otherwise open to the public except for a breach of the peace actually committed during the meeting.
- Access to Agenda and Board Packet. If a public body holding a meeting electronically has a website, the public body is encouraged to make available to the general public through the public body’s website homepage the agenda and other materials relating to the meeting. This is to be an “encouragement” rather than a mandate.
- Closed Session. The EO provides that members of the general public may be excluded from participation in a closed session of the public body held electronically during that meeting if the closed session is convened and held in compliance with the requirements of the OMA applicable to a closed session.
With an electronic meeting, it may be a challenge to provide notice to public participants regarding when the open meeting is back in session. Thus, as a practical matter, the public body may consider providing a time for phone participants to call back in or have a separate closed session phone conference for members of the public body exclusively and keep the “main meeting” on hold during that time.
- No Texting, Email, or “Round-the-Horn” Communications. Members of a public body must avoid using email, texting, instant messaging, and other such electronic forms of communication to make a decision or deliberate toward a decision, and must avoid “round-the-horn” decision-making in a manner not accessible to the public at an open meeting.
This is no different than the normal course of business. Public bodies should refrain from discussing or deciding issues by email. Further, the emails would likely be subject to the Freedom of Information Act.
- Decisions in Compliance with Order. If a decision or other action of a public body is in compliance with the requirements of this order and the other requirements of the OMA, it is in compliance with the OMA.
- EO Electronic Participating Applies to Other Public Hearings. If a statute or rule other than the OMA requires that public comments be permitted or a public hearing be held, including in conjunction with the issuance of a permit or a hearing required under the Uniform Budgeting and Accounting Act, 1968 PA 2, a public body may conduct the hearing remotely. If not expressly authorized by statute or rule, written comment, including by electronic means, also is permitted.
We recommend contacting your attorney to determine whether re-noticing the hearing would be recommended.
- Charter or Ordinance in Conflict. A provision of this order will prevail over any conflicting provision of a local charter, ordinance, or rule.
A copy of the full EO 2020-15 is found here.
If you need any help interpreting the order, adopting public comment rules, or drafting a notice that is in compliance with EO 2020-15 and the OMA, please contact us:
- Leslie A. Dickinson
- Sarah J. Gabis
- Laura J. Genovich
- Brian G. Goodenough
- Michael D. Homier
- Mark T. Koerner
- Anne M. Seurynck
- Alexander J. Thibodeau