Local Government Law Bulletin October 17, 2020 Bradley A. Fowler

SB 1108: Governor Signs Legislation Amending Open Meetings Act

On October 16, 2020, Governor Gretchen Whitmer signed Senate Bill 1108 into law as part of a COVID-19 response plan approved by the Legislature this week following the Michigan Supreme Court’s recent ruling striking down the Governor’s Coronavirus-related executive orders. SB 1108 amends the Open Meetings Act (“OMA”) to permit and establish procedures for a public body to hold meetings electronically.

As amended, OMA now allows for the continuation of virtual meetings for any circumstances through the end of this year (December 31, 2020) and provides retroactive application to deem as valid all virtual meetings that have taken place since March 18, 2020, under the now defunct executive orders. Similar to the prior executive orders, under the new changes to OMA, if a public body elects to conduct business via electronic means, then certain notices and precautions must be taken to ensure public participation at the meeting.

Beginning on January 1, 2021 and continuing through December 31, 2021, remote participation in meetings will be permitted only under limited circumstances including: 1) military duty; 2) a medical condition; or 3) if a statewide or local state of emergency or state of disaster is declared pursuant to law or charter by the Governor or a local official that would risk the personal health or safety of the members of the public or the public body if the meeting were held in person. The amendments specify that, unless a state of emergency or state of disaster is declared, only members absent due to military duty or a medical condition may participate remotely. All other members of the public body must be physically present at the meeting. Additionally, any member of a public body attending a meeting remotely after December 31, 2020, is required, at the outset of the meeting, to publicly announce for inclusion in the minutes that the member is attending remotely and, except for those participating remotely due to military duty, must identify the physical location from which he or she is attending the meeting.

After December 31, 2021, electronic participation in meetings of a public body will only permitted to accommodate members of the public body absent due to military duty.

We point out that pursuant to an Order issued by the Michigan Department of Health and Human Services Director on October 9, 2020, any in-person meeting is currently subject to the following limitations:

1. Indoor gatherings of up to 10 persons are permitted provided each person at the gathering wears a face covering;

2. Indoor gatherings of more than 10 (and up to 500 persons) are permitted subject to:

(A) In venues with fixed seating, limit attendance to 20% of seating capacity of the venue; AND

(B) In venues without fixed seating, limit attendance to 20 persons per 1,000 square feet in each occupied room; AND

(C) Require that each person at the gathering wears a face covering; AND

3. All gatherings must maintain six feet social distancing between attendees (MDHHS Order, Sec. 2(b) and (d)).

The attorneys at Mika Meyers have considered the amendments to OMA and the ramifications of this MDHHS Order and are prepared to answer questions from our clients regarding attendance at meetings of public bodies, adjourning or rescheduling meetings or hearings, the use of technology to conduct meetings that comport with the Open Meetings Act as amended, and MDHHS Order. Please contact us if you have any questions on how the new changes to the law may affect your municipality or public body. Our attorneys are standing by to assist.

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