Michigan Supreme Court Expands Definition of “Public Bodies” Under the Open Meetings Act
A recent decision from the Michigan Supreme Court has significantly changed which governmental bodies are subject to the Michigan Open Meetings Act (“OMA”). OMA requires all meetings, decisions, and deliberations of a “public body” to be open to the public. The recent decision, Pinebrook Warren, LLC v City of Warren, expands which entities are considered a “public body” under the statute. Previously, a board or committee was subject to OMA only if it had final decision-making authority on policy matters. Now, the Supreme Court has held that OMA applies to any body that is effectively making the final decision, even if those decisions are ratified by a higher authority.
Under OMA, a “public body” is defined as:
“Any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, that is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or to perform a governmental or proprietary function. . .”
The Supreme Court has previously held that if a body meets both parts of the definition, the requirements of OMA apply. The body must be (1) a “state or local legislative or governing body”, and (2) “empowered. . .to exercise governmental or proprietary authority.” The body does not need to be the “main governing body for a political subdivision” but must have authority to make decisions through which it formulates public policy. Whether OMA applies or not ultimately depends on how much power the body has to make final decisions.
Prior to Pinebrook Warren, there was a clear dividing line. If an advisory board or committee did not make final decisions but simply provided advice or recommendations to a different body which would ultimately make the decision, then the advisory body or committee would not be a “governing body” subject to OMA. It did not matter whether the superior board was thoroughly reviewing the recommendation or rubber stamping it. Instead, it was determined entirely by whether the body had the final decision-making authority.
The recent Supreme Court decision, Pinebrook Warren, changed this analysis. The case involved the City of Warren and the Warren Marihuana Review Committee (the “Review Committee”). The Review Committee was created by ordinance and was tasked with reviewing applications for medical marijuana dispensary licenses. It was comprised of five members, three of which were also city council members. The Review Committee would rate each application on a scale of 1 through 10 after reviewing the application material and a brief presentation from the applicant. The Review Committee’s meetings were closed to the public and they met frequently. Ultimately, the Review Committee forwarded application scores and recommendations to the Warren City Council who made the final decision on licensure without discussing the underlying applications, facts or basis for the recommendations from the Review Committee.
The Supreme Court found that the City of Warren was effectively avoiding OMA by delegating its tasks to the Review Committee and then simply rubber stamping those decisions without any meaningful review at a public meeting. Therefore, the Supreme Court held, the Review Committee is a “governing body” subject to OMA. Additionally, because the Review Committee met behind closed doors, the approval of the licenses violated OMA and the Council’s action was void.
In the wake of the Pinebrook Warren case, the determination of whether OMA applies to an advisory board, sub-committee or similar body “is tied to the nature of the body.” If the advisory board or sub-committee does the analysis and effectively makes public policy decisions that would otherwise have had to been made by the original public body according to the law, then the second entity is also a public body subject to OMA. In other words, when looking at whether advisory boards, sub-committees and the like are subject to OMA, courts will now employ a fact-based determination, which considers a variety of factors, including the authority granted to the body by the enabling statute, ordinance or other law, the types of actions taken by the body, and the level of review taken by the superior body.
Complying with Pinebrook Warren
As a result of Pinebrook Warren, municipalities that utilize advisory boards, hiring committees, sub-committees or other similar groups to assist with governing will need to be cautious when conducting meetings without OMA compliance. Local governments should proactively assess which body is really making the decisions. If the advisory board or sub-committee is completing most of the work, followed by the primary governing body rubber stamping the recommendations without independent review and analysis, then the advisory board or committee meetings must comply with OMA and be noticed and held open to the public.
Alternatively, a local government can comply with Pinebrook Warren by ensuring the decision-making power at issue rests with a governing body which is already in compliance with OMA. In other words, when presented with a recommendation from an advisory body, the main legislative body should always take action on the recommendation separately, make an effort to review the recommendation and underlying rationale, and substantively discuss the recommendation before approval or denial.
Please contact a member of our Local Government Practice Group if you have questions regarding the implications of Pinebrook Warren or whether a specific board or committee is subject to OMA.
