AG Nessel weighs in on Ottawa County Housecleaning

[XLFD]

The new year started out pretty good for the residents of Ottawa County when their county commission, with a fresh infusion of conservative commissioners, immediately fired County Adminstrator (and former city manager of Ludington) John Shay and replaced him with John Gibbs, along with a host of other changes.  Having reviewed most of the meeting, it was a little troubling to see the new crew do quite a bit of actions that were not on the agenda, but then I considered the circumstances and found nothing wrong with it.

Attorney General Dana Nessel (pictured above before being wheeled out of the 2021 MSU-UM football game), about as far from a conservative mindset you can find, did see something wrong with it.  Earlier today she issued a letter to the Ottawa Board with those concerns noted.  Apparently, she was considering criminal charges for violations of the Open Meetings Act (OMA), and when she couldn't find any mechanism in that law to do so, she thought a letter chiding them for violating the spirit of the law and pedantically linking them to her OMA Handbook (which indicates they did nothing against the spirit of the law) was appropriate.  

She notes that:  "Board members who surreptitiously met, deliberated, or made decisions before taking their oaths of office-- which is apparent from the Jan. 3, 2023 meeting-- have violated the trust of the Ottawa County citizens and their actions are clearly contrary to the spirit and intent of the OMA.  Unfortunately, this behavior is continuing."

Nessel seems to fail to understand that the commissioners-elect were citizens before they took their oath of office and assumed the duties and had the powers of an Ottawa County Commissioner.  Laws like the OMA, which only affects public officers, has no effect on private citizens even if they are future members of the dominant voting bloc of a county.  Frankly, her charged accusations as an attorney general against private citizens' surreptitiously meeting and making decisions when they are not a part of a public body and have no statutory power is the most troubling thing I see here.  

But she does understand that to a point because she wants to change the law so what happened would be illegal in the future.  She proposes that the legislature should add a definition of "public official" in the OMA that would include in its definition:  "a person who has been elected to a public office but is not yet serving or has not yet taken his or his (sic) oath of office."

This illustrates how dumb this attorney general is.  You have to seriously rework the OMA if you introduce this into its definitions, for it blows up the meaning of "public body", "meeting" and "quorum".  Consider if you have 11 members in your public body and have a turnover of 7 new members at an election.  If those 7 newbies get together and talk before they are on the body, they are not having a meeting as the 'real' 11 members at the time are not present and there is not a quorum.  If you think of them as added members, the quorum is still not reached as only 7 of 18 members would be there.

So even if the new members got together and conspired to do a lot of stuff prior to their first meeting, they would still be within the law with this definition.  Her other recommendation is to extend the posting time of a meeting notice/agenda from 18 hours before a meeting to 48 hours and "limiting a public body's ability to modify that agenda during a meeting, except in exigent circumstances."  

Currently, the OMA doesn't require posting agendas, just notices, but almost all public bodies post combinations of the two.  As the current OMA doesn't have any requirement for agendas, this isn't a bad idea, and the 48 hour notice also seems to be an improvement, yet neither of these ideas would have made a difference here as the county had posted notice/agendas before the meeting more than 48 hours before it convened.  

Thus, she suggests that the agenda posted would be the business of that meeting, except in exigent circumstances.  Exigent means "requiring immediate action; urgent; pressing".   This may be a good practice in theory, but almost any last-minute addition to an agenda could be considered exigent, so having such a subjective section of law wouldn't be very effective.  It also seems fairly certain to me that if you and a quorum of other like-minded individuals were newly elected to the board and had no say in what was on the agenda for your first meeting, that anything you may want to do as a popular mandate that first meeting should qualify as exigent.

This legal threat by the attorney general to an opposite-viewed county commission is nothing more than political grandstanding as you definitely wouldn't have ever been a problem with a progressive takeover of a conservative county commission.  This is evident throughout the communication, accusing them of impropriety and ignorance of the law each paragraph (other than when she relates complaints), when she exhibits those traits in her careless allegations:

1: "Commissioners-elect held clandestine meetings, created a secret agenda, and carried out extensive actions outside of the public's view."

2:  "the alleged conduct of certain commissioners is the antithesis of transparency and good governance..."

3:  "... to prevent future erosion of the principles underlying the OMA by this board..."

4:  "I will also be evaluating whether other laws governing local units of government should be amended [due to your actions]"

5:  "[I will advise the legislature to amend the law to restore] public confidence lost following the appearance of secret deliberations and meetings..."

6:  "certain commissioners would benefit from reviewing the obligations of public officials under the OMA."

Attorney General Nessel, the Open Meetings Act only applies to public bodies, when you insist that those elected to those bodies adhere to that act while they are not part of the public body, you are not going after the Ottawa County Commission, you are going after private citizens doing nothing wrong. 

[Freedom Seeker]

https://www.michigan.gov/ag/news/press-releases/2023/02/16/ag-nesse...

Thanks X for the alert. I agree ... political grandstanding by Dana Nessel. The OMA needs more consequences and fines for repeated offenders (like the City of Ludington and now Scottville, thanks to your diligence). Nice picture of Nessel swearing off Bloody Marys!)

(Your "Nessel letter" link opened to your Jan 3 article, so I attached it above).

[XLFD]

Thanks for the assist, I have amended the link to Nessel's letter to actually go to the letter, which is a little different than her press release offering you linked to.

It worries me greatly that this will be the AG offering opinions on the OMA over the next four years that will be used by MI courts at times as authoritative legal opinions.  The trouble with the OMA is that it has been stripped of power by recent courts and attorney generals, and the legislature should revisit the concept of strengthening the spirit and intent of the law by enacting reforms.  

I can think of two reforms right off.  Allow declaratory relief in OMA cases as was allowed until 2016, when the MSC wiped out that remedy which allowed plaintiffs to at least be compensated for prosecuting bad-acting public bodies who can cure almost every violation of OMA just by reenactment (the second thing that needs reforming) and nullifying corrective legal actions.  What sane attorney will file OMA lawsuits against a public body that regularly violates the OMA, if they have little to no chance of prevailing and/or recouping their costs?

[Willy]

Thanks for the information X. She truly is a nit wit. What she is trying to do would apply to all post-election  public office holders who have not actually been sworn in, from the Governor all the way down to the school board. She wants these people to be held accountable as if they were already in the offices they were to occupy in the future. Tell us Nessel, will these people have the same power and duties as the current office holders they will replace before they actually take office. Also will they qualify to receive the same pay check as the current holders of their elected office before they are sworn in? Can they create, vote on and enact rules laws and regulation without actually being in office before the date they take office? This woman is as stupid as the people who voted for her.