The late Monday May 15th afternoon session of the West Shore Community College (WSCC) Board of Trustees went late into the evening as they convened a three hour long closed session in order to privately evaluate the performance of WSCC's president, Kenneth Urban.
But while the length of that closed session, held out of view of the public, may make one wonder whether Urban's evaluation was all that was contemplated during that time, the real issue that night happened just before that session was convened. This reporter was unable to attend that meeting, I base what was said on the report Mitch Galloway and Brooke Kansier of the City of Ludington Daily News (COLDNews) wrote in Tuesday night's newspaper after attending the meeting themselves.
"There is knowledge I am not comfortable in evaluating the president and his performance. That violates the (Open Meetings Act) clause", said Board Vice-chairman Richard M. Wilson (pictured), who you may know as the City of Ludington's acting city attorney. "With all due respect, I will put my law degree up to your law degree", Wilson said to Board Chairman Bruce Smith. "That motion is to adjourn (sections) 8 and 9 (and) to go over President Urban's evaluation at a different date unless we have been briefed by the chairman or the executive committee, with apparent meetings that have been occurring between you and members of this community, including the faculty and staff."
It should be noted that Bruce Smith has no law degree, although he has a Masters of Arts degree from CMU. Wilson then reportedly argued that private phone calls between members of the board, not in Urban's presence, were not a way to conduct discussion.
"Even though that's how we have operated here for years?", Smith asked Wilson, then continued. "As far as your law degree is concerned, if you get two lawyers in any room you're going to get two different opinions, so I will hold my experience to your law degree to whether this is a violation to the Open Meetings law."
WSCC Executive Director of Communications Thom Hawley said the evaluations done by board members, which are conducted via individual surveys, do not violate the OMA. He also said Monday's closed session was in line with the law "because the president asked the board to go into closed session for the evaluation (see subsection 'a' of MCL 15.268)."
Despite Wilson's efforts, the motion to adjourn and further discuss the president's evaluation fell to a 4-3 vote, and the three hour closed session was held. Little doubt that further discussion of legalities ensued during that time. The morning afterwards, a release was issued by Smith saying that though President Urban was meeting expectations, he could "make progress including some elements of leadership, decision-making/problem solving and building the campus community."
While it is refreshing to see WSCC Trustee Richard Wilson consider OMA issues with proper deference, being that Ludington City Attorney Richard Wilson's apathy towards OMA has allowed a couple of credible OMA lawsuits to be filed against the Ludington city council, his concerns as reported do not seem to amount to a viable legal argument.
If legal arguments could be won by just declaring that "I graduated from law school and you didn't.", Wilson would win all such disagreements; assuredly, he has used his station in Ludington to stress legal authority even when the strict wording of the laws disagree with his interpretation. He managed to cajole a couple of other trustees to follow his line of thinking at this meeting, much as he normally does in Ludington council chambers.
Wilson infers that unlawful meetings have taken place, but fails to state why they would have been meetings that need to follow the OMA in the first place. The OMA (MCL 15.262) defines 'meeting' as "the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy".
Wilson never mentions how there was a quorum present in these affairs, which would require more than three trustees being present, nor does he proffer that what they were discussing impinged on public policy of WSCC.
In a similar scenario seen in the Michigan Court of Appeals ST AUBIN v. ISHPEMING CITY COUNCIL(1992), the Ishpeming mayor held individual discussions with all the council members regarding whether the plaintiff should have been retained as city manager. The court found that such canvassing was not in violation of OMA. To be sure, if other elements were thrown in that indicated the meetings Wilson alleged happened were done to circumvent discussing the issue at an open meeting, then Wilson may have a case (see BOOTH NEWS., INC. v. U OF M BD. OF REGENTS and BOOTH NEWSPAPERS, INC. v. WYOMING).
Barring any revelation that a quorum of trustees got together to discuss something beyond their annual evaluations, or any smoking gun e-mails where deliberations or decisions on public policy stand out, Richard Wilson's concerns appear to be unfounded. I will be sending an E-mail out to him for more information regarding his concerns.