Prior to the pandemic, the Open Meetings Act (“OMA”) had been interpreted by the Courts and Attorney General to allow remote electronic participation by members of the public body, as long as those members could hear and be heard at the meeting. This was not widely used and was for the most part discouraged, but it was an option.
When the pandemic hit, Executive Orders issued under the Emergency Powers of the Governor Act (“EPGA”) prohibited public meetings, and established procedures for local governments to meet electronically under guidelines deemed to comply with the OMA. Then the EPGA was struck down as unconstitutional, and the Legislature responded by amending the OMA to allow local governments the option of meeting remotely for a limited time, which expired March 31, 2021. But the OMA was also amended to specifically require that members must be “physically present” at the meeting, doing away with the previous option of members participating remotely, with three exceptions, two of which are time limited.
The recent amendment to the OMA mandates that “a public body shall . . . establish the following procedures to accommodate the absence of any member of the public body due to military duty, a medical condition, or state-wide or local state of emergency or state of disaster. . .” This appears to require that municipalities have in place procedures to accommodate persons who are absent due to a medical condition through December 31, 2021, and persons absent for military service thereafter. A “medical condition” is defined by the OMA as an “illness, injury, disability, or other health-related condition,” which we would interpret to include quarantine in accordance with current guidelines due to possible exposure to COVID-19.
COVID-19 related illnesses continue to fluctuate and spike but are hopefully on a downward trend. In any event, public bodies may still encounter situations in which a member is sick or quarantined or has a medical condition that makes it inadvisable for them to attend public meetings in person. To accommodate that, the municipality should consider having in place a simple procedure to allow a member who cannot attend a meeting due to medical condition or military service. The features of a procedure should include:
- Recognition that members of the governing body, planning commission, zoning board of appeals, and other bodies may request or participate remotely if they have a medical condition or are on military duty.
- A provision for a member to notify the chair or staff as soon as practicable that they wish to participate by remote or electronic means.
- Accommodation of the absent member in a way that permits two-way communication so that the absent member can hear and be heard by the other board members and the public.
- Posting of a notice on the website and a prominent place in the office that a member or members will be participating in the meeting by electronic means, and explaining how to convey comments or information to that member prior to the meeting.
- A requirement that a member absent due to a medical condition must state that they are attending remotely, and where they are at the time, and this must be recorded in the minutes. A member absent for military duty need not give their location for security reasons.
This procedure could be adopted by resolution.
A municipality does still retain the ability through the end of 2021 to meet by electronic means if a state of emergency has been declared for the county in which it is located, as has been done for Kent and Ingham Counties, for example. In addition, there is a procedure by which a municipality can declare its own local state of emergency, which would permit remote meetings through the end of 2021. The procedures for declaring a local state of emergency can be found on our website, www.mikameyers.com – search for “Meeting Remotely After December 31, 2020 – Declaring a Local State of Emergency.”