Beware Discussing or Deciding Issues of Public Policy Over Email
A recent unpublished per curiam opinion of the Michigan Court of Appeals found that emails sent between members of a public body were in violation of the Open Meetings Act.
The issues presented in the case, (Markel v Mackley), involved the activities of the seven member Oakland Township Parks and Recreation Commission. A division occurred between four long standing members of the Commission (the defendants) and three newer members (the plaintiffs) when it was discovered that the four longstanding members were sending emails between themselves regarding certain Commission matters. Essentially, it was alleged that the defendants were discussing and deciding how to address Commission matters as a united front, and then carrying out their plans at the public meetings. The plaintiffs argued that the emails exchanged between the defendants amounted to a violation of the Open Meetings Act, in that those emails were a meeting where a four-member quorum deliberated and decided issues of public policy. The Court of Appeals agreed.
Pursuant to the Open Meetings Act, public bodies must conduct their meetings, make all of their decisions, and conduct their deliberations (when a quorum is present) at meetings open to the public. After examining the emails, the Court held that the four defendants were present in the email chain while public policy issues were being deliberated upon, and that because there was a quorum present and deliberation occurred regarding a matter of public policy, there was a meeting under the Open Meetings Act. The Court further held that because the meeting was held privately via email, the four defendants were in violation of the Act, which required such deliberations to be open for the public.
In light of this case, members of public bodies subject to the Open Meetings Act should be careful to avoid deliberating or discussing official business even over email or other forms of electronic communication such as text message, if a quorum is present. Failure to do so could subject the members of the public body, or the body itself, to costly legal challenges for violation of the Act.
If you have any questions regarding the implications of the Markel case on your municipality, or the requirements of the Open Meetings Act, please contact your Mika Meyers’ municipal attorney.