November 22, 2022 Alexander P. Henderson

Meeting in Closed Session With an Attorney Under the Open Meetings Act

The Michigan Court of Appeals recently issued an opinion in the case of Sunshine v Delta College Board of Trustees, rejecting a legal challenge to a public body’s meeting with an attorney in closed session to consider a written legal opinion. The Michigan courts have consistently interpreted the Open Meetings Act (“OMA”) as permitting a public body to meet in a closed session to consider a written legal opinion from its attorney, and the Sunshine v Delta College Board of Trustees opinion does not alter that rule. Nonetheless, the opinion provides a helpful review of the requirements applicable to a public body meeting in a closed session with its attorney.

There are several permissible purposes set forth in the OMA for meeting in a closed session, two of which are especially relevant to meeting in closed session with an attorney. One of the purposes described in the OMA is “[t]o consult with [the public body’s] attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.” The other purpose is “[t]o consider material exempt from discussion or disclosure by state or federal statute,” which includes written legal opinion because materials subject to the attorney-client privilege are specifically exempt from disclosure under the Freedom of Information Act. However, public bodies should note that, when meeting in closed session to consider a written legal opinion, the considerations discussed therein must not exceed the scope of the confidential legal advice. In other words, a public body may not circumvent OMA’s open meeting requirements by calling a closed session for the purpose of considering a written legal opinion, and by then proceeding to discuss tangential, non-legal matters in the closed session. Of course, the public body may not make any decisions while in closed session.

In order to properly enter a closed session for the purpose of consulting with an attorney about litigation strategy or considering a written legal opinion, the OMA requires that, the public body, while in the course of an open meeting, hold a roll call vote in which two-thirds of the serving public body’s members vote in favor of entering the closed session. The meeting minutes must state the purpose (or purposes) for which a closed session is held. If the closed session is called to consider material exempt from disclosure, the minutes should provide a brief description of the exempt material, unless the description would defeat the purpose of the nondisclosure. In the Sunshine case, the Court of Appeals held that the description in the minutes was sufficient where the stated purpose was to “consider material exempt from discussion or disclosure by state or federal statute—a written legal opinion.”

Once in the closed session, the clerk or designated secretary of the public body must take minutes that are separate from the minutes for the open meeting. The closed session minutes are not available to the public, and may only be disclosed if required by a court order. The separate closed session minutes must be retained by the public body’s clerk for a period of at least one year and one day after approval of the minutes of the open meeting at which the decision to enter a closed session occurred.

If you have any questions about how to properly convene or conduct a closed session meeting of a public body, please contact your municipal attorney at Mika Meyers.

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