The Michigan Court of Appeals recently issued its published decision in Spaulding v Swiacki (July 2021), which posted a warning sign to public officials who might consider proceeding with a public meeting, while knowing in advance that the meeting was not properly posted on the public body’s website, in accordance with the requirements of the Open Meetings Act (“OMA”). The Court’s warning sign states, in effect, that such action could result in a public official being held personally liable for statutory damages, court costs and attorney fees, even if the meeting was otherwise conducted in substantial compliance with OMA’s notice requirements.
The Spaulding case arose from a situation where a township board decided to convert a previously-scheduled “workshop” meeting into a “special” budget meeting at which substantive issues of public policy would be decided. By deciding to hold a “special” meeting, that invoked OMA’s prior-notice requirements for special meetings, which include posting notice of the meeting, at least 18 hours in advance, in two places: (a) at the public body’s principal place of business, and (b) if a public body maintains a website that includes monthly or more frequent updates of public meeting agendas or minutes, then also on the public body’s website.
Both types of postings applied to the township at issue in the Spaulding case. And in that respect, the township did post a timely written notice of the special meeting at the township hall, five days in advance. However, notice of the special meeting was accidentally not posted on the township’s website until roughly seven hours before the meeting. This mistake was brought to the attention of the board members, several hours before the special meeting, and so they were all aware of the untimely website notice in advance. In view of this, one board member refused to participate in the meeting, but the other board members proceeded with the meeting. The participating board members were then sued under Section 13 of OMA, for intentionally violating OMA, in a suit that sought statutory civil damages of $500, plus court costs and attorney fees.
In the circuit court, the defendant-board members successfully argued that they could not be held liable for an intentional violation because they had substantially complied with OMA’s notice requirements. Based on “substantial compliance,” the circuit court dismissed the claims against them for this so-called “technical” violation. On appeal, however, the Court of Appeals reversed, holding that “substantial compliance” is not a defense to an action that seeks civil damages for an intentional violation of OMA.
In so holding, the Court of Appeals distinguished between a claim under Section 10 of OMA, which seeks only to invalidate a public body’s decision, versus a claim under Section 13 of OMA, which seeks statutory damages for an intentional violation of OMA. The Court noted that Section 10 of OMA expressly states that “substantial compliance” with OMA’s notice requirements is a defense to a claim that seeks to invalidate a decision, but that the same “substantial compliance” language does not appear in Section 13. The Court interpreted this omission from Section 13 as being evidence that the Legislature did not intend for “substantial compliance” to be a defense under Section 10. Instead, strict compliance with OMA’s notice requirements is necessary to defeat a claim for an intentional violation under Section 13.
Public officials should take careful heed of the Spaulding decision. It is not all that uncommon for website postings of “special” public meetings to be forgotten or posted in an untimely manner, given that “special” meetings, by their very nature, are often scheduled on very short notice. If this type of website-posting mistake occurs, and if a member(s) of the public body has prior knowledge of the mistake, then the clear implication of the Spaulding decision is that the meeting should be cancelled and rescheduled, so that the individual members who had prior knowledge of the mistake are not sued for an intentional violation of OMA that would seek to hold them personally liable for statutory damages, court costs and attorney fees.
If you have any questions about the Spaulding decision or any other aspect of OMA, please contact Ronald Redick or another member of the Firm’s Municipal Law Practice Group.