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November 17 2020

Meeting Remotely After December 31, 2020 – Declaring a Local State of Emergency

By: Bradley A. Fowler

Last month, the Michigan Supreme Court ruled that the Governor lacks authority to extend states of emergency in relation to the COVID-19 pandemic. In place of the Governor’s now defunct executive orders, the Michigan Department of Health and Human Services has implemented orders drastically limiting the size of in-person gatherings and mandating social distancing and spacing requirements. At the same time, Coronavirus cases in Michigan are trending upwards and exceeding previous highs hit back in April. With all of these factors compounding as we head into the final months of 2020, it may be unsafe or impossible for many local governments to hold in-person public meetings during at least the first few months of 2021. This is a pressing problem because the recent amendments to the Open Meetings Act (“OMA”) provide that beginning January 1, 2021, meetings of public bodies may only be held electronically under the following very limited circumstances: 1) to accommodate members absent due to military service; 2) to accommodate members with a medical condition; or 3) in the event of a statewide or “local state of emergency.”

There are rumors that the Legislature may act before the end of the year to extend the ability for public bodies to continue meeting virtually for any reason into 2021. However, given the current circumstances, municipalities should be prepared with a “Plan B” in the event the Legislature and/or Governor fail to act. To comply with OMA, the best and only option for municipalities wishing to continue meeting remotely after December 31, 2020 is to declare a local state of emergency.

What is a Local State of Emergency?

Under Act 390 of 1976, the Emergency Management Act (“EMA”), when circumstances within a county or municipality indicate that the occurrence or threat of widespread or severe damage, injury or loss of life or property from a natural or human-made cause exists, the chief executive official of the county or municipality is authorized to declare a local state of emergency. Therefore, if the chairperson of a county board of commissioners, township supervisor, village president, mayor, or other chief executive determines that COVID-19 constitutes a threat of widespread or severe injury or loss of life in their community, they may use the EMA to declare a local state of emergency. Once made, emergency declarations must be promptly filed with the Michigan Department of State Police. Additionally, under the EMA, a local state of emergency may not continue or be renewed for a period in excess of seven (7) days unless an extension or renewal is consented to by the governing body of the municipality.

Procedures for Declaring a Local State of Emergency

Step One – Appoint an Emergency Management Coordinator

In order to declare a local state of emergency, the EMA first requires a municipality to appoint an emergency management coordinator. In municipalities with a population of 25,000 or more, if no emergency management coordinator has been appointed, the chief executive official of that municipality is automatically the emergency management coordinator for that municipality. For municipalities with a population less than 25,000, the chief executive officer of the municipality will need to affirmatively appoint someone to serve as the emergency management coordinator in the manner provided in the municipal charter. Under EMA, municipalities may appoint the emergency management coordinator for their county to also serve as emergency management coordinator for the municipality.

Step Two – Issue a Written Declaration of Local State of Emergency

The power to declare a local state of emergency is vested in the chief executive official for a municipality unless some other official is designated in the municipal charter. For general law townships, the township supervisor is vested with this authority. The declaration should be in writing and signed by the chief executive official. If a board or council meeting is scheduled in December, the declaration can also be made at the meeting, but should still be memorialized in writing.

Step Three – File the Declaration with the State

Under EMA, all declarations of a local state of emergency must be promptly filed with the Department of State Police Emergency Management Division. If a municipality has appointed the county emergency management coordinator as the emergency management coordinator for the municipality, the county should also be notified.

Step Four – Obtain Consent of the Governing Body

By law, no local state of emergency may continue or be renewed for a period in excess of seven (7) days unless an extension or renewal is consented to by the governing body of the municipality. Because of the nature of the pandemic and the need to continue the local state of emergency for an extended period of time to allow for continued remote meetings, once a local state of emergency is declared, the governing body of the municipality should be convened within seven days to consent to the extension of the declaration for a set period of time, but at least through the next meeting of the governing body. It can then be renewed as necessary.

Pending any legislative fix, we advise our clients who wish to continue meeting remotely to prepare to issue a local state of emergency at the end of December 2020. The attorneys at Mika Meyers are monitoring legislative efforts to further amend OMA, and have been in contact with county emergency managers in this regard. We will provide updates on any new developments and are prepared to answer questions from clients wishing to invoke the EMA and declare a local state of emergency.