City Settles Open Meetings Act Lawsuit After Illegal Closed Session

At Monday night's Ludington City Council meeting (11-25-2019) the council voted to settle a lawsuit that has pestered it for nearly two years concerning alleged multiple violations of the Michigan Open Meetings Act (OMA), primarily in the way they conducted committee meetings.  This happened with a unanimous 4-0 vote held after a closed session, with present Councilors Miller, Winczewski, Rozelle, and Bourgette voting to agree to settlement terms.   Three of the seven councilors were absent this night.  

Earlier that evening, Councilor Brandy Miller acknowledged that the council would have to postpone the vote to exempt itself from Public Act 152 of 2011 (effectively allowing the City of Ludington to retain excessive fringe benefits for its employees) because the council did not have enough people, to whit:

She correctly explained that for the exemption to take place they would need at least a 2/3 vote of seven members (or 4.66 members), an unattainable number with only four available to vote.  This was tabled until the next meeting.  Whoever noticed this problem did their homework properly.

The meeting proceeded with a lot of budget and infrastructure items, along with the council agreeing to lease Harbor View Marina from the state.  Shortly after my second public comment chiding them for that lease agreement, they made a motion to adjourn to closed session under the guise of sec 8(e) of the OMA, to consult with their attorneys regarding trial or settlement strategy in connection with specific pending litigation.

But despite the City's civil attorney, Bradley Yanalunas, and City Attorney Richard Wilson being present, they apparently forgot some of the basics about closed sessions, as noted in section 7(1) of the OMA

Which effectively means, like it did in the previous case, that 5 or more city councilors were needed to vote to enter into closed session, as they used 8(e) to justify the closure.  If this is unclear to you, please take a look at this article published by Mika Meyers, our city attorney's law firm.

Thus in the process of settling one lawsuit for violations of the OMA, they have opened themselves up for another by their careless actions in going into a closed session that they could not possibly enter with just the votes of four members.  It's a bit ironic, a touch moronic, and definitely chronic.

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A post cacophonic comment sardonic, bad tonic.

It seems to me that the requirement for 2/3 should be changed. It’s a number that can work well when a large public body is involved. When boards with a small number of reps are involved the 2/3 rule makes getting things done more difficult. Having to calculate that a partial person would meet the 2/3 requirement is rediculous. With smaller boards it makes sense to have the number of members that can be divided by three. So for efficiency sake the number of board members should be changed or the fraction of require members needs to be refigured so that any time a majority is required the calculations can be made so the the outcome will not require a partial person. Your the math expert x, does what I propose make any sense?

When it comes to meetings, you don't want to have things divide into each other exactly.  Consider why most boards and committees have an odd number of members, say 7 instead of 6.  It works out that they don't deadlock on votes when all members are present like they might when 6 are there and it goes 3-3; another advantage is a quorum of six members (4) is the same as a quorum of seven members-- so if your member number is odd, you can survive an extra absence.  The same idea comes up with supermajorities and the '2/3 mandates'-- and if you believe there is a 'perfect' number for members on your board, you will find that it is rare that they will all make it to the meetings.

Over ninety percent of votes taken at the local level require simple majorities of those board members actually attending the meeting.  This just happened to be that one meeting where a '2/3 vote of all members' (present or absent) came into play, there is rarely any other time this ratio comes into play.  So even though there was a quorum of councilors, they couldn't do the exemption or the closed session.

The reason these bars are so high is that the state hopes for a higher degree of unanimity when a public body decides to go into a 'rare' closed session or exempt itself from budget reform measures.  Ideally, councilors and commissioners should be striving to keep things as open as possible and to keep their fringes within reason.  Voting for a closed session or exemption should be a last ditch effort that most everyone should agree on.  

  If 3 of the councilors were absent, how could a valid vote be taken to settle a lawsuit?  Were the 3 absent councilors  missing on purpose?   Was the reason possibly that they couldn't accept that they did something wrong and  would look foolish on the settlement vote?  Stay tuned for the next chapter of OMA 101

It's one of the many cases where a simple majority of the quorum of councilors that show up decide the issue.  If it had deadlocked at 2-2, Mayor Miller would have got his first vote to break the tie.  

It may seem counterintuitive that 4 present of 7 councilors could settle a multimillion dollar lawsuit (which this one wasn't, aw shucks), but not be able to vote to go into closed session to consult with an attorney, but that's how it is.  

Looking and acting more moronic than ever, but, looking forward to Chapter 2 of OMA 101, keep up the good work X.


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