On March 13, 2020, Governor Whitmer issued Executive Directive No. 2020-2 (the “Directive”). In part, the Directive provided:
Acting under sections 1 and 8 of article 5 of the Michigan Constitution of 1963, I direct the following:
- All public bodies of departments and agencies of the State, including but not limited to boards, commissions, committees, subcommittees, authorities, and councils, must, to the extent practicable, consider postponing public meetings and/or agenda items that may be deferred until a later time.
- All public bodies of departments and agencies of the State subject to the OMA [Open Meetings Act] that must continue to meet must do so by means sufficient to enable meaningful access and communication for all participants. Participation by remote access technology, including conference calling, real-time streaming, or other platforms is acceptable, and sufficient to form a quorum, so long as public access and participation is preserved.
- Public notice of the time and date of each meeting of a public body of a department or agency of the State subject to the OMA must be given in the manner required by the OMA, which includes publication of the notice on the public body’s internet website. The public notice must include sufficient information such that the public’s right to address a meeting of the public body is preserved.
It is our opinion that the above Directive excludes municipalities as they do not fall under the technical definition of “departments and agencies of the State” as used here; however, the restrictions can be viewed as guidelines for municipal practice.
The Directive does not suspend the requirements of the Open Meetings Act, PA 267 of 1976, as amended (the “OMA”). Rather, it encourages alternative means of communication and the adjournment of non-essential matters. Municipalities can take similar action related to their public meetings.
The requirements of the OMA have not changed due to the Directive or the declaration of a state of emergency, see Executive Order No. 2020-4. Section 3 (1) of the OMA provides that “All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be permitted to attend any meeting except as otherwise provided in this act.”
An interesting issue raised by the Directive involves the ability of public bodies to meet remotely or “virtually” in lieu of an actual physical presence. Previously, relative to a contested hearing matter being conducted by the Department of Social Services, the Michigan Court of Appeals in Goode v Department of Social Services, 143 Mich App 756 (1985) held that the requirements of the OMA were met when the hearing was conducted via teleconference with all interested persons being able to participate. See also, Opinion of the Attorney General No. 6835 (1995) relying on Goode and stating that a school district budget meeting in which some participants attended via video conference complied with the requirements of the OMA.
Opinions vary relating to whether a public meeting can be held virtually and still comply with the OMA. One could interpret the Directive to indicate the State’s position is now that such a meeting would be in compliance with the OMA. However, because the analysis is very fact specific, it is critical that a municipality discuss any particular situation it with its attorney prior to pursuing a virtual public meeting.
We offer the following general recommendations for any municipality considering virtual meetings:
- Rules of procedure should be amended accordingly prior to any change in practice.
- Video conference, as opposed to teleconference, is preferred.
- Every effort should be made to ensure the public is notified of the changes well in advance.
- An access point needs to be made available in a public place (for example a video conference terminal in the traditional meeting chamber). The public must be able to at least hear everything that is being said and be allowed to comment at the proper time or times.
- Non-essential matters might be adjourned until they can be addressed in a traditional in-person forum.
- Prior to cancelling any meeting, the municipality should ensure that there are no statutory or charter requirements to hold meetings at certain times or intervals. Should a meeting be required, in most cases, it can simply be brought to order and then adjourned.