Local Government Law Bulletin March 18, 2020 Bradley A. Fowler

Executive Order No. 2020-15 Addresses Open Meetings Act

Late yesterday, Governor Gretchen Whitmer issued Executive Order No. 2020-15 (the “Order”) to address meetings of public bodies, such as township boards, village councils, county boards of commissioners, etc., required under the Open Meetings Act (“OMA”), MCL 15.261 et seq., in the wake of the novel coronavirus (COVID-19) pandemic.

The Governor’s Order (linked here) temporarily suspends rules and procedures relating to physical presence at meetings and hearings of public bodies and other governmental entities in Michigan. Effective immediately, and continuing through April 15, 2020 at 11:59 p.m., meetings of public bodies under the Open Meetings Act may be held electronically, including by telephonic conferencing or video conferencing, provided they are held in a manner in which both the general public and the members of the public body can participate and subject to the rules and regulations detailed in the Order.

As set forth in the Order, a public body is not required to meet via electronic means. In-person meetings may still be conducted, but the Order certainly encourages use of meeting via electronic means if possible. If a public body elects to conduct business via electronic means, then certain notices and precautions must be taken to ensure public participation at the meeting, as required under the Open Meetings Act.

We point out that, in large part, participation in meetings by members of the body by electronic means was already permitted under the OMA, as long as other board members and the public were able to be in two-way communication. It was usually recommended, however, as a safe practice, that at least a quorum be physically present in one place, but the Order makes clear that is not necessary.

An important point that the Order does not address is whether public participation can be allowed only by electronic means, to the exclusion of any in-person attendance of the public at some location where they can observe the meeting. In view of this omission, we consider it advisable for public bodies to conduct electronic meetings in a way where the public can be physically present, at a central location, to observe the electronic broadcast and to interact with the members of the public body during the OMA-required public comment period.

The attorneys at Mika Meyers have considered the ramifications of this latest executive order and are prepared to answer questions from our clients on attendance at meetings of public bodies, adjourning or rescheduling meetings or hearings, the use of technology to conduct meetings that comport with the Open Meetings Act and the Order and a host of other issues. Please contact us if you have any questions on how the Governor’s Order may affect your municipality of public body. Our attorneys are standing by to assist.

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