Court of Appeals Rules That Individual Officials May be Subject to Open Meetings Act When Exercising Delegated Authority
On December 4, 2024, the Michigan Court of Appeals, in Exclusive Capital Partners LLC v City of Royal Oak, held that an individual municipal official can be considered a “public body” under the Open Meetings Act (“OMA”), if they are delegated the authority to make final decisions. In Exclusive Capital Partners, the City of Royal Oak City Council delegated authority to the city manager to administer the review of marihuana license applications. The city manager conducted a thorough review with the assistance of a working group and recommended applicants for licensure. Even though the City Commission approved the issuance of the licenses, the Court determined that the city manager was the effective final decision maker and therefore a “public body” subject to OMA.
This decision comes on the heels of Pinebrook Warren LLC v City of Warren, decided in July of 2024. Pinebrook Warren held that an advising/recommending subcommittee can be subject to OMA, even if it has not been delegated decision-making authority, if that subcommittee is nonetheless effectively making the final decision, based on the facts of the situation (i.e., when acting as the “de facto decision maker”). Exclusive Capital Partners takes this concept a step further and holds that OMA can apply even when the delegated authority is exercised by an individual, rather than by a multi-person subcommittee.
For an individual officer to be subject to OMA under Pinebrook Warren and Exclusive Capital Partners, two things must be true. First, the individual must be delegated authority by the municipality’s highest governing body (i.e., township board, village council, etc.). This rule does not apply when individual executive officers are granted authority by statute or charter provisions; it must be a delegation. Second, the individual must have “made a de facto policy choice” for the governing body.
Whether an individual officer has made a de facto policy choice for a governing body will depend on the circumstances and the actions the governing body takes (or does not take) before voting to approve the individual’s recommendation. However, it is clear that, if a governing body merely “rubber stamps” an individual official’s recommendation, this would be insufficient to insulate the individual official from OMA’s requirements. For example, in Exclusive Capital Partners LLC, the city manager effectively made the final decision because the city commission adopted the city manager’s recommendation without any deliberation on other applicants. For more information on this topic, please see our recent posting on the Pinebrook Warren decision: https://bit.ly/3VIUKUh.
Please contact a member of our Local Government Practice Group if you have questions regarding the implications of Exclusive Capital Partners, Pinebrook Warren or whether a specific board, committee, or individual is subject to OMA.
