New Legislation Permits Continued Remote Meetings and Ratifies Actions from Previous Remote Meetings

Clark Hill PLC

On October 16, 2020, Governor Whitmer signed SB 1108 amending the Open Meetings Act (“OMA”) to allow meetings of public bodies to be held electronically or with remote participation, at least through December 31, 2020. The new statute is similar in many respects to Governor Whitmer’s EO 2020-154 and was passed after the Michigan Supreme Court struck down that Executive Order and all others issued after April 30, 2020. The new statute also retroactively approves public body meetings held wholly or partly electronically by telephone or video conference since March 18, 2020, thus effectively ratifying actions taken during those meetings. A summary of the developments that led to this legislation and further details are set forth below.

On October 2, 2020, the Michigan Supreme Court held that the power of the Governor to maintain a state of emergency that she declared on March 10, 2020, lapsed on April 30, 2020, and that executive orders issued thereafter were unconstitutional, including the executive order permitting virtual meetings. Among other things, the Supreme Court opinion had the practical effect of returning the rules for holding meetings of public bodies to the way they were before the executive orders permitting virtual meetings. On October 12, 2020, the Supreme Court held that its rulings had immediate effect.

The Supreme Court’s opinions threw the municipal and school world into chaos, raising questions about whether actions taken by municipalities and school districts after April 30 in reliance on the validity of the executive orders were valid, or subject to after-the-fact challenge. Significant questions have also arisen as to the ability of municipalities and schools to hold meetings while keeping their board members and stakeholders safe going forward, particularly given the public gathering restrictions put into place by the Michigan Department of Health and Human Services in its October 9, 2020, Emergency Order.

The new statute answers those questions, at least in part. First, public meetings from the date of the statute through December 31, 2020, can continue to occur remotely “under any circumstances” without violating OMA. “Under any circumstances” is not specifically defined, but is broad enough to include any reason, including the continued presence of the pandemic. Second, the new statute retroactively approves remote public meetings dating back to March 18, 2020, at the beginning of the pandemic, and thus effectively ratifies all actions taken by public bodies in reliance upon and in conformity with the Governor’s executive orders.

Beginning January 1, 2021, the situation is a bit murkier. Under the new statute, during calendar year 2021, the only members of public bodies who may participate in a public meeting remotely are those absent “due to military duty, a medical condition, or a statewide or local state of emergency or state of disaster” enacted pursuant to law “that would risk the personal health or safety of members of the public or the public body if the meeting were held in person.” In other words, remote meetings held “under any circumstances,” simply because the pandemic remains present, will not be allowed in 2021. And, in 2022 and future years, remote participation is permitted only for members of the public body on military duty.

The new statute adopts various procedural requirements for remote meetings that closely resemble the requirements in the Governor’s executive orders.

Public bodies must provide for two-way communication so that public body members can hear one another. Public comment must be able to be heard by public body members and other public participants, although public bodies may also use technology that allows public participants to submit typed comments that can be read aloud and heard by all participants.

A public body with an official internet presence must post advance notice of an electronic meeting at least 18 hours before the start of the meeting, explaining why the public body is meeting electronically and how members of the public may participate in the meeting. If the public body has a meeting agenda, it must be published on the public body website at least two hours before the start of the meeting.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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