Local Government Law Bulletin July 17, 2018 Bradley A. Fowler

Court of Appeals Affirms a Public Body’s Authority to Self-Cure Open Meetings Act Violations

On March 13, 2018, the Michigan Court of Appeals issued a published opinion in Lockwood et al v Township of Ellington et al, affirming the authority of public bodies to ratify, or not ratify, decisions made in violation of the Open Meetings Act (“OMA”) at their discretion.

The case arose out of a November 1, 2016 meeting of the Ellington Township Board. It was uncontested that no notice of the November 1, 2016 meeting was posted at the Township Hall as required under the OMA. During the November 1, 2016 meeting, the board appointed and verified the appointments of two individuals to the Planning Commission.

Shortly thereafter, a new board took office, and at a special board meeting on November 22, 2016, the new board concluded that the November 1, 2016 meeting was held in violation of the OMA and therefore the events of that meeting, including the appointments to the Planning Commission, would be added to the December meeting agenda. At the December meeting, the new board chose not to ratify the Planning Commission appointments and instead resolved to accept applications for the vacancies which were eventually filled by two different individuals.

The ousted appointees filed a lawsuit alleging that the OMA does not vest a public body with the power of invalidation. Rather, according to the plaintiffs, the OMA provides only that an action may be commenced in the circuit court to challenge the validity of a decision of a public body made in violation of the OMA. In response, the Township argued that nothing in the OMA limits a public body’s abilities to reenact, or not reenact, an illegal decision.

The trial court sided with the ousted appointees and determined that the incoming board did not have the authority to remove the previously appointed Planning Commission members even though their appointments took place at an illegal meeting. On appeal, however, the Court of Appeals reversed and vacated the trial court’s judgment. The Court of Appeals held that “the board was permitted by the OMA to correct the deficiency in the procedure by ratifying the decisions made during the November 1, 2016 meeting, [however,] there is nothing in the OMA to suggest that it was required to ratify the decisions made during that meeting.” Therefore, the Court continued, “if an action taken at a meeting held in violation of the OMA is not ratified, it is not valid, and has no force or effect.” The Court concluded that the Township was authorized to self-correct any procedural violations on its own without first being sued, and that because the appointments made at the November 1, 2016 board meeting were violative of the OMA and never ratified, they had no force or effect.

The Lockwood case clarifies that any municipal board actions taken in violation of the OMA are null and void unless the board reenacts or ratifies those actions, and that when a public body discovers a procedural deficiency, it can self-correct the deficiency rather than wait to be sued at the tax-payers’ expense.

Mika Meyers has a depth of experience in dealing with OMA issues. If you have any questions about the implications of this case to your municipality or you discover a procedural deficiency with regard to a meeting subject to the OMA, we would be pleased to advise you of available options and remedies to stave off costly litigation.

See the latest from our firm.

Let’s start a partnership worth keeping.