Advisory Bodies and the Open Meetings Act
Governing boards of municipalities often form separate work groups or sub-quorum committees that are tasked with reviewing certain discrete matters and providing recommendations to the governing board. Prior Michigan case law has established that such work groups or committees, if they serve in an advisory capacity only – meaning that they have no final decision-making authority – are generally not subject to the Open Meetings Act (“OMA”), because they do not meet OMA’s definition of a “public body.” That is, such advisory bodies do not “exercise governmental or proprietary authority or perform a governmental or proprietary function,” which is a key component of OMA’s definition of “public body.”
The Michigan Court of Appeals recently ratified this same principle in the case of Pinebrook Warren, LLC v City of Warren (2022), which involved claims that the City of Warren’s Medical Marihuana Review Committee (“Review Committee”) had allegedly violated OMA by making decisions, in private meetings, about which applicants should be awarded medical marijuana provisioning center licenses. The Court of Appeals rejected those claims for the reason that the Review Committee, although it conducted detailed evaluations of applications for licenses and identified preferred applicants, only provided recommendations to the City Council. The City Council retained sole authority, under the City licensing ordinance, to determine whether to approve or deny an application, and was not bound by the Review Committee’s recommendations. In that situation, held the Court, the Review Committee was not a “public body” for purposes of OMA, and was therefore not subject to OMA’s open-meeting requirements.
There can be a number of benefits associated with utilizing work groups or sub-quorum committees to conduct studies and to provide recommendations, while not being constrained by OMA’s various requirements. But care should be taken when this is done, because such work groups or committees can accidentally commit OMA violations, if their authority is not carefully exercised to remain purely advisory.
For example, it has been recognized that a work group or committee becomes subject to OMA if, in the course of making its recommendations, it eliminates certain options from consideration by the full public body. This could happen, for instance, when an advisory body conducts private interviews of job candidates, and then eliminates certain candidates from further consideration by the full public body. The courts have recognized that a committee’s decision to eliminate a job candidate from further consideration is a final decision of a public body, which would thus make the committee subject to OMA.
To avoid this type of accidental OMA violation, it is necessary that committees do not engage in the practice of eliminating or winnowing-down options. Committees can certainly identify preferred options and recommend them to the full public body, but the committee must nonetheless forward all options the committee considered to the full public body, so that the full public body can then make the final decision about which options are eliminated, at an open meeting conducted in compliance with OMA.
For assistance, guidance, or additional information regarding OMA’s requirements and the use of advisory bodies, please contact a lawyer in our firm’s Municipal Law Practice Group.