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November 17 2020

MDHHS Issues New Emergency Order Prohibiting In-Person Public Meetings

By: Bradley A. Fowler

The Michigan Department of Health and Human Services (MDHHS) issued a new emergency order to combat the spread of Coronavirus (the “Emergency Order”).  The Emergency Order, which takes effect on Wednesday November 18, 2020, enacts a three week “pause” by prohibiting indoor gatherings of two or more people from more than one household.  The effect of this is that under the Emergency Order, all indoor meetings of a public body must be held completely virtually, if at all, between November 18 and December 8, 2020.

The Emergency order was issued under the provisions of the Public Health Code for the control of epidemics. This is a different statute than the 1945 law under which Governor Whitmer had issued her Executive Orders earlier this year, and so the Supreme Court decision striking down that law does not apply to the Emergency Order.  

At this point the Emergency Order (and the meeting ban) expires December 8, so at least as of now, local governments could schedule an in-person meeting on December 9 or later.  However, given the rising level of COVID-19 infections across the state, it is possible and even probable that the Emergency Order will be extended.  If a local unit does plan to schedule an in-person meeting after December 8, 2020, it may be prudent to include language in the notice that depending on public health conditions and applicable orders and directives, the meeting may be changed to a virtual electronic meeting.

The recent amendments to the Michigan Open Meetings Act expressly permit public bodies to meet virtually through December 31, 2020 for any reason.  Under the legislation, in order to hold a meeting virtually, the public body must:

  1. Post advance notice of the meeting on the public body’s website not less than 18 hours prior to the virtual meeting; the notice must clearly explain (a) why the public body is meeting electronically, (b) how many members of the public may participate in the meeting electronically, (c) how members of the public may contact members of the public body to provide input or ask questions on any business that will come before the public body at the virtual meeting; and (d) how persons with disabilities may participate in the meeting.
  2.  Post the meeting agenda for the virtual meeting on the public body’s website (not less than two hours prior to the virtual meeting).

It is anticipated the Legislature will extend that deadline before the end of the year, but if it does not, local units may need to have a plan in place to declare a local state of emergency to continue meeting remotely into 2021. 

Finally, the limitations on gatherings in this most recent Emergency Order do not apply to workplace gatherings that occur consistent with the emergency rules issued by MIOSHA on October 14, 2020 and there are no additional restrictions in the Emergency Order specific to local government offices.  However, under the MIOSHA order and other MDHHS guidelines in place, all in-person work for local government employees is prohibited to the extent their work activities can feasibly be completed remotely.  MIOSHA has announced it will be conducting workplace inspections for compliance with its emergency rules. 

The attorneys at Mika Meyers have considered the ramifications of this Emergency Order and are prepared to answer questions from our clients regarding meetings of public bodies under OMA during the pandemic.  Please contact us if you have any questions on how the Emergency Order may affect your municipality.  Our attorneys are standing by to assist.