Two Illegal Closed Sessions Don't Make Lawful Open Meetings

[XLFD]

When state governments adopted their own versions of Open Meetings Acts (OMA) back during the aftermath of Nixon's Watergate scandal, their rationale was to make governments at the state, county and other local levels more in tune with their duties to the public as regards accountability and transparency.  These duties had rarely been codified before that time, under the belief that those who went into the line of public service were doing it for the right reasons and doing things the right way.  

The OMA, particularly in Michigan, was not established as a punitive act to make criminals out of public officials who didn't follow it to the letter, this can be seen by the relatively light sanctions available to those who notice it and either try to prosecute it themselves or are fortunate enough to be in a county with a prosecuting attorney that holds other officials accountable (if those even exist).  The law has just a little more teeth if the official intentionally violates the OMA, but this is often difficult to do without an admission.  

Two years ago, a lawsuit was initiated against the City of Ludington with a lot of tangible OMA issues that the City had with conducting meetings of its standing committees.  Summarized, the City of Ludington for a long period of time had its committees conducting business in meetings not in compliance with OMA in three major ways:  1) deliberations/decisions that required the full council at an open meeting were being made  2) committees met with a quorum of the city council present without noticing the meeting as a 'city council meeting'  3)  committees would regularly switch members freely, thus allowing a quorum of the council to deliberate/decide on public issues over multiple meetings.  City Attorney Richard Wilson (below) has let these transgressions pass over the past ten years as acceptable for Ludington, there is plenty of evidence suggesting it preceded him as well (as in the Jack Byers' OMA lawsuit settled in 2008).

This totally disenfranchised the public who rarely knew when or where these meetings were taken place (unless they were personally invited) and who would often see issues for the very first time only on the weekend newspaper right before the meeting where it would become law or policy.  The bad habits of public officials were ingrained over the course of decades of sloppy public service, and it's proven hard to break some of those routines-- even with new reforms and several officials willing to improve the City's service to the public.

You may recall, the November 25th meeting had a closed session which was found to be illegal under the OMA.  When a vote to go into closed session requires five votes, and only four councilors are present, you cannot go into a closed session.  Two attorneys very familiar with the OMA failed to see that and more than ten other city officials (when you consider the audience) present did not have a clue.  When I pointed it out to the city manager, he acknowledged a mistake had been made in an E-mail reply to me: 

"We plan to re-enact the Closed Session and approval of the settlement due to my concern of the fruit from the poisonous tree argument. This was not caught by either legal Counsel or Debbie so as such we must do it properly at the first meeting in December."

 

The fruit phrase he used has been used before by City Attorney Richard Wilson a few times and is a term that usually comes up in rules of evidence for court proceedings, not closed sessions of meetings.  In OMA law, re-enacting defects of a meeting not held in compliance with the OMA, but it seemed that re-enacting going into a closed session was not a cure for the problem.

It should be noted, however, that the 4-0 vote to pass the settlement held in open session was ostensibly a legal decision made by those councilors present.  A public body cannot legally make decisions in closed sessions, so how can you reenact nothing as per MCL 15.270(5)?

Unfortunately, our city attorney has been committed to the old way of doing things in Ludington, so he could not advise Mitch to freely give out the minutes of this unlawful closed session, which should have never been held.  I advised the City that the best cure would be to make the normally-exempt closed meeting minutes publicly available, but they just wanted to try it again.  

The December 9th, meeting had me devote my second public comment to the topic, where I effectively told them that if they went into closed session, they would be violating the law once again.  Attorney Wilson decided to run with it anyhow.

December 9th, 2019 Ludington City Council meeting from Mason County District Library on Vimeo.

XLFD:  (1:11:00 in):  "At the end of last meeting the council voted to go into closed session to consult with its attorney regarding pending litigation. The Open Meetings Act allows the council to do this, but it requires 5 of 7 councilors to approve such a closed session. Only four councilors, a simple quorum, was present at the meeting, so there was no way possible to go into a closed session without violating the Open Meetings Act. It becomes highly ironic when you consider the unresolved topic of the litigation was alleged violations of the Open Meetings Act.

The four councilors came out of closed session and voted to accept the proposed settlement, this was perfectly legal; the plaintiffs signed a notarized document that night signifying our approval of the terms. It was later after I double checked state law that I noticed the insufficiency of the vote to go into closed session and brought it to the City's attention. The City's action in response is to recreate the closed session tonight, do it legally this time, and then reconsider a vote that has already been lawfully made. Here is the problem, if it isn't already apparent.

The City is unwilling to disclose the minutes of that illegal closed session, even after the lawsuit has been officially settled by their action at the end of the last meeting. They seem to believe that reenacting the decision to close with presumably 5 or more votes will make the minutes of the unlawful session at last meeting exempt from disclosure. The problem is that they are not allowed to go into closed session even with 5 votes tonight. Here's why.

The act allows consulting with attorneys in closed session under section 8(e) "only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body". The pending litigation was settled following the vote by the council and plaintiffs' signatures on the settlement papers. To go into closed session tonight on any other pretense will be  a violation of the Open Meetings Act..." (end of my two minutes, I would have also added): 

"Please allow the public to inspect the minutes of the illegal closed session of the Ludington City Council held on November 25th, 2019, and think twice before going into closed session tonight under false pretenses. You don't cure violations of open meeting statutes by doubling down on illicit closed sessions [END]."

After my fellow plaintiff reminded the council that our motives are purely for open, accountable government, the mayor made a prepared statement defending his fellow officials and their dedication to their jobs, before admitting the 'parliamentary' mistake made at the prior meeting (and thanked me for bringing it to their attention).  They then considered going into closed session:

CA Wilson (1:18:30) :  "The error at the last meeting was mine, the first time in forty years that I've had a motion to go into closed session that required a 3/4 vote, and I didn't have a quorum to begin with, so the apologies come from me primarily.  Second of all, the settlement agreement that was evaluated and acted on at the last meeting, and Mr. Rotta can correct me if I'm wrong, did not include potential future violations of the Open Meetings Act, it only resolved claims up through the point of the settlement. 

Second of all, after it was pointed out to us that it was in my words, "the mother of all ironies" that we would violate the Open Meetings Act while trying to settle a case over the violation of the OMA.  We did some research, we cannot find any case where there was an error into going into closed session because of a lack of a sufficient number of people to make up the 3/4 requirement and so the best advice of the City Attorney, and I believe is also concurred with Bradley Yanalunas, is that the OMA does allow us an opportunity to re-enact a potentially violated decision, and it is our advice for the City to go back into closed session, if you do so desire, because it will take five of you to do that, have a discussion with Brad who will be on the phone with us, and then re-enact the decision when we come back out of closed session, so there is no question going forward that we acted properly in approving the settlement."  

I hate to remind Barrister Wilson that it's a 2/3 vote not a 3/4 vote, if it was the latter, 6 of 7 councilors would need to vote to go into closed session, 5/7 just doesn't get there.  I have found no precedent for cases involving closed session quorums either, but there may be one in the near future. 

For other than the city attorney's statement, they went into closed session without justifying how 'an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body' when the plaintiffs had already signed the settlement papers and had them notarized after the city council made a legitimate 4-0 vote in open session at the last meeting.

How could I explain the legal problems of going into closed session this time any better than I did in under two minutes?  Why would any legal scholar believe that curing a defect in the OMA would require going into closed session without a valid reason to do so (and none articulated)?   If they do not reveal the minutes of these two illegal closed sessions, they will find themselves in a familiar courtroom once again charged with multiple violations of the OMA and the FOIA.  

[Willy]

Very interesting X. I had to read this several times to try and unravel the illegal pretzel the city created. I sure am glad you have a good legal mind. I have a question for you. If a meeting was illegal, how can it be re-enacted. It’s like reenacting a crime until it is legal? Wouldn’t the best way to solve this would be to start from scratch and conduct a new “legal” meeting?

[XLFD]

Great question, Willy, and I apologize for the legal pretzel even though I'm not the one that created it.  Let me address a peripheral topic about whether reenactment was called for in this instance.  The legal basis for reenacting is within the law, section 10(5) which says:  

"In any case where an action has been initiated to invalidate a decision of a public body on the ground that it was not taken in conformity with the requirements of this act, the public body may, without being deemed to make any admission contrary to its interest, reenact the disputed decision in conformity with this act..."

Presuming I or another person challenged the city to 'invalidate' the original decision to go into closed session, the OMA says in section 10(2) that "A decision made by a public body may be invalidated if the public body has not complied with the requirements [of sections 3 and 5 of the act]"  

A plaintiff cannot invalidate a decision by a public body just because section 7 has been violated, which was what happened here.  The reenactment was a waste of time, and their attorneys should have known that if they did their jobs.  The best way to have resolved the original violation was to admit they made a mistake (which they did), make the minutes of the meeting available, and if they wanted to reenact something, have the four councilors present at the unlawful session reprise their roles in that closed session at this other meeting-- in full period costume.

But the City's attorneys are too smart for that, they will conduct an extra OMA violation for closed sessions, then block the public's attempts to get the minutes from either closed session through FOIA.  Too damn smart, LOL.

[Willy]

Thanks for the explanation X. Although, in my humble opinion, I think the legal system  has skewed the meaning of the word reenactment.

[XLFD]

I agree, the ability to re-enact decisions was why the city council made a vote in March of this year to affirm their decision in September 2016 to have the splash pad in Copeyon Park. 

Despite the City making tons of decisions at six standing committee meetings regarding the splash pad, and doing so in supposedly 'advisory committees without any proprietary or  governmental authority', this re-enactment was deemed by the court (following precedent) to satisfy the council's potential problems with the 2016 vote.

The FOIA and OMA have both been gutted in recent years by legislators and the courts emboldened by widespread public indifference.  This appears to be mainly fueled by the media pushing the officials' side of the story, especially when alternate news agencies are involved.

[Freedom Seeker]

There is a difference between "smart" which they would be if they done things right, and "wiley, "like Wiley the coyote" which they are when they seem to say whatever to sound smart and confuse the issues to get the last word. I do appreciate that Richard Wilson admitted that he made the mistake this time. Humility is a strength and I hope there is more of it in our government.