Outside Legal Counsel PLC

OLC Confirms New Path to Hold Public Officials Responsible for Open Meetings Act Violations

For Immediate Release | Jul 08, 2021

The Michigan Court of Appeals today issued a decision establishing new precedent confirming that when officials violate Michigan's Open Meetings Act, it is no longer a defense to say we "substantially" complied.

In this case, OLC brought the action solely against the public officials instead of the public body. The circumstances stem from what was originally a January 2020 "budget workshop" but was changed at the last minute to a special meeting. During this new special meeting, three major issues were added to the agenda with little or no notice to the public. The Township Supervisor emailed the rest of the Township Board telling them that they had failed to post the notice of the meeting on the Township website for the required 18 hours and should reschedule the meeting.

In response, the township clerk self-concluded "it doesn't matter if it was not posted on the website." Michigan law says otherwise:

When the township board came together, the township supervisor again reiterated his objection to the illegal actions to the board members. When that fell on deaf ears, he informed the other board members that he would not participate in the meeting, and the moved to a seat in the audience along with other members of the public. The remaining board members proceeded with the meeting during which they deliberated and took votes on several matters.

Plaintiffs, represented by the OLC law firm, subsequently sued defendants, alleging that defendants violated the public-notice requirements of the OMA. The other sued board members argued, in response, that they had "substantially complied" with the OMA's notice requirements. The trial court concluded that that defendants had substantially complied with the OMA's notice requirements, and dismissed the lawsuit. The appeal follows.

At oral argument, the issue was technical, but an important one. Is a public body's "substantial" yet incomplete compliance with the OMA's public-notice requirements mean that public officials can avoid responsibility for the violation?

The July 8, 2021 decision, authored by Michigan Court of Appeals judge Brock Swartzle, explained that Michigan's law governing public meetings provides for several types of relief for non-compliance, including invalidation of policies approved during that meeting, injunctive relief against future violations, and civil and criminal penalties against public officials. And under the strategy chosen by OLC, the Court explained that public officials cannot avoid legal liability for OMA violations by suggesting they "substantially" but incompletely compiled with the Open Meetings Act. Instead, "it does not matter whether compliance was substantial or not, whether the violation was a material or technical one--rather, the focus is on the public official's state of mind."

OLC attorney Philip Ellison served as counsel for the appeal.

The case has been remanded back to the Macomb County Circuit Court for further proceedings.

A copy of the decision can be found here.