The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5183

March 8, 1977

OPEN MEETINGS ACT

1976 PA 267

MCLA 15.261

et seq; MSA 4.1800(11) et seq.

TABLE OF CONTENTS

Commencing

at Page

I. SUMMARY OF THE ACT ............................................... 24

A. PUBLIC BODIES SUBJECT TO THE ACT ............................ 24

B. EXCLUSIONS FROM THE ACT ..................................... 24

C. WHAT IS A MEETING? .......................................... 24

D. NOTICE OF MEETINGS .......................................... 25

E. EMERGENCY MEETINGS .......................................... 26

F. RULES FOR CONDUCTING MEETINGS ............................... 26

G. RIGHTS OF THE PUBLIC ........................................ 26

1. Right of the Public to be Present ........................ 26

2. Rights of the Public to Address the Meeting .............. 26

H. MINUTES OF MEETINGS ......................................... 27

I. CLOSED SESSIONS ............................................. 27

J. REMEDIES .................................................... 28

1. Invalidation of Action ................................... 28

2. Injunctions and Mandamus ................................. 28

3. Personal Civil Liability ................................. 28

4. Criminal Penalties ....................................... 28

II. RESPONSE TO SPECIFIC INQUIRIES ................................... 29

1. MESC referee hearings ....................................... 29

[Request from S. Martin Taylor, Director, Michigan

Employment Security Commission]

2. Michigan Traffic Safety Information Council ................. 29

[Request from Frances J.Miller, Secretary, State Safety

Commission]

3. Michigan Environmental Review Board and the

Interdepartmental Environmental Review Committee .......... 29

[Request from Terry L. Yonker, Executive Secretary,

Michigan Environmental Review Board]

4. Blind Stand Operators Advisory Committee .................... 30

[Request from Paula Stark, Legal Liaison Division,

Department of Social Services]

5. Civil Service Commission .................................... 30

[Request from Civil Service Commission]

6. Teacher Tenure Act .......................................... 31

[Request from Senator David A. Plawecki]

7. Discipline or Suspension of Students ........................ 32

[Request from Senator David A. Plawecki]

8. Conference Telephone Call Meeting ........................... 32

[Request from James Hyde, Executive Secretary, State

Boundary Commission]

9. Large Groups That Wish to Attend ............................ 33

[Request from Frances J. Miller, Secretary, State Safety

Commission]

10. Conflict Between the Provisions of the Statute

Controlling Hearings of the Board of Forensic

Polygraph Examiners ....................................... 33

[Request from Lynn Marcy, Chairman, Board of Forensic

Polygraph Examiners]

11. Public Right to Address ..................................... 34

[Request from Lynn Marcy, Chairman, Board of Forensic

Polygraph Examiners]

12. Length of Address to Public Body ............................ 34

[Request from S. Martin Taylor, Director, Michigan

Employment Security Commission]

13. Right to Address at an Adjudicative Hearing ................. 34

[Request from James Hyde, Executive Secretary, State

Boundary Commission]

14. A Quorum of a Public Body Assembled to Address a Civil

Organization .............................................. 35

[Request from Representative Bobby D. Crim]

15. Place Where Notice of Meetings are Posted ................... 35

[Request from S. Martin Taylor, Director, Michigan

Employment Security Commission]

16. Person Who Posts the Notice ................................. 36

[Request from James Hyde, Executive Secretary, State

Boundary Commission]

17. Schedule of a Public Body That Does Not Hold Regular

Meetings .................................................. 37

[Request from James Hyde, Secretary, State Boundary

Commission; and Lynn P. Marcy, Chairman, Board of

Forensic Polygraph Examiners]

18. Calling a Closed Meeting .................................... 37

[Request from S. Martin Taylor, Direct or, Michigan

Employment Security Commission]

19. Reasons for Which a Vote for Closed Meetings May be Held .... 37

[Request from S. Martin Taylor, Director, Michigan

Employment Security Commission]

20. Combining Open and Closed Sessions .......................... 37

[Request from Lynn P. Marcy, Chairman, Board of Forensic

Polygraph Examiners]

21. Employment Interviews ....................................... 38

[Request from S. Martin Taylor, Director, Michigan

Employment Security Commission]

22. Employment Interviews by Agency Staff ....................... 38

[Request from S. Martin Taylor, Director, Michigan

Employment Security Commission]

23. Employment Interviews and Right of Privacy .................. 38

[Request from Senator William Faust]

24. Employment Interviews and Equal Protection .................. 39

[Request from Senator David A. Plawecki; Senator William

Faust; and Representative Thomas H. Brown]

25. Committees and Subcommittees ................................ 40

[Request from Senator David A. Plawecki; Senator William

Faust; and Representative Thomas H. Brown]

26. School Superintendents ...................................... 41

[Request from Senator Bill S. Huffman]

27. Approval of Minutes ......................................... 41

[Request from James Hyde, Executive Secretary, State

Boundary Commission]

28. Civil and Criminal Penalties Provisions ..................... 41

[Request from Senator David A. Plawecki; Senator William

Faust; Representative Thomas H. Brown; Donald Fichter,

Director, Municipal Finance Commission; Frances J.

Miller, Secretary, State Safety Commission]

29. Payment of Counsel .......................................... 42

[Request from Senator John A. Welborn]

30. Certificates of Compliance .................................. 43

[Request from S. Martin Taylor, Director, Michigan

Employment Security Commission; and Donald Fichter,

Director, Municipal Finance Commission]

31. Ex Officio Members .......................................... 43

[Request from Donald Fichter, Director, Municipal

Finance Commission]

32. In General .................................................. 43

[Request from Senator Richard J. Allen]

I.

SUMMARY OF THE ACT

The Open Meetings Act, 1976 PA 267; MCLA 15.261 et seq; MSA 4.1800(11) et seq, which will be referred to as 'the Act' has an effective date of March 31, 1977. Basically the Act provides that all meetings of a public body shall be open to the public and shall be held in a place that is available to the general public. Section 3(1). There are, however, numerous complexities in the Act requiring explanation and clarification; this may be attested to by the fact that, since its enactment, I have received 32 requests from public officials seeking my interpretation of its various provisions.

I have therefore prepared this pamphlet which is divided into two parts. The first part contains a summary of the provisions of the Act and the second part the questions asked and my response to each one.

A. Public Bodies Subject To The Act

The Act applies to all public bodies which are defined as 'any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee thereof performing an essential public purpose and function pursuant to the lease agreement.' Section 2(a).

B. Exclusions From The Act

Section 3(8), (9), and (10) provide the exclusions from the coverage of the Act.

Section 3(8) states that the Act shall not apply to the Workers Compensation Appeal Board, the Employment Security Appeals Board, the Teacher Tenure Commission when acting as a board of review from the decision of a controlling board, an arbitrator or arbitration panel appointed by the Employment Relations Commission and an arbitration panel selected pursuant to the malpractice arbitration act of 1975.

Section 3(9) excludes meetings of a committee of a public body that meets for the purpose of adopting a nonpolicymaking resolution of tribute or memorial. Finally, social or chance gatherings or conferences not designed to avoid the Act are excluded from the coverage of the Act. Section 3(10).

C. What Is A Meeting?

The term 'meeting' is defined as a

'. . . convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy.' Section 2(b)

The definitions of essential words in this Act have interlocking relationships and the definition of 'meeting' must be considered in light of the definition of 'decision' provided in section 2(d) which states:

"Decision' means a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy.'

Thus, a quorum of the public body's members must be present when the body meets for the purpose of deliberating toward, rendering a vote or taking other action by which the public body effectuates or formulates public policy. However, chance meetings or social gatherings at which a quorum may be present are not included within the definition of meeting.

Meetings with a quorum present held to deliberate a public question must be held at a public meeting. Thus, if the members of a public body gather, a quorum being present, for the purpose of deliberating, the meeting is subject to the provisions of the Act even if there is no intention that the deliberations shall lead to the rendering of a decision on that occasion. In other words, a public body may not meet informally in advance of a public meeting to determine what will be decided formally at the public meeting.

D. Notice of Meetings

Public bodies which have a regular meeting schedule must post the schedule of their meetings for the following calendar or fiscal year within ten (10) days after the first meeting of the public body in that calendar or fiscal year. The notice must state the dates, times and places of the regular meetings. Section 5(2). In keeping with legislative intent, the notice of the first meeting shall also be posted in accordance with the requirements of section 5. If the schedule of regular meetings is changed, the new dates, times and places of the regular meetings must be posted within three (3) days after the meeting where the change is made. Section 5(3).

Where a regular meeting is rescheduled or a special meeting is called, a public notice stating the date, time and place of the meeting must be posted at least eighteen (18) hours prior to the meeting. This requirement does not apply to special meetings of subcommittees. Section 5(4). Where a public body recesses a meeting for more than thirty-six (36) hours the meeting may not be reconvened unless notice has been posted at least eighteen hours before the meeting as required in section 5(4). The state legislature is not required to post eighteen (18) hours notice where it recesses or adjourns for less than eighteen (18) hours.

The notices must contain the name of the public body to which the notice applies, its telephone number and its address. Section 4(a). The notice must also state where the official minutes of the public body are stored and are available for inspection. Section 9(2). Notice for a meeting of a public body must always be posted at its principal office and any other locations considered appropriate by the public body. Section 4(b). If the public body is a part of a state department, a legislative or judicial branch of state government, an institution of higher education, or part of a political subdivision or school district, the notice shall also be posted in the principal office of the state department, institution of higher education, Clerk of the House of Representatives, Secretary of the State Senate, Clerk of the Supreme Court or political subdivision or school district. Where the public body has its own principal office and is a component of another department of government, it is required to post at least two notices: one at its own office and another at the office of its parent department. Notices may also be posted at other locations considered appropriate by the public body. Section 4(c).

If a local public body does not have a principal office, the notice is posted in the office of the County Clerk in the county in which the public body serves; the public notice for a state public body is posted in the office of the Secretary of State.

Upon written request and payment of a reasonable fee to cover the cost of printing and mailing, a public body shall send to the requesting party a copy of the notice. A newspaper, radio and television station may receive mailed copies of the notice free of charge. Section 6.

E. Emergency Meetings

Public bodies may meet in emergency session without complying with the notice requirements in the event that it is necessary to hold a meeting to deal with a severe and imminent threat to the health, safety or welfare of the public when 2/3 of the members serving on the body decide that delay would be detrimental to the efforts to lessen or respond to the threat. Section 5(5).

F. Rules For Conducting Meetings

Public bodies may establish rules to ensure the orderly conduct of meetings and the rules must be recorded by the public body. Section 3(5). The legislature or a house of the legislature may provide by rule that the right of the public to address the meeting may be limited to prescribed times at hearings and committee meetings only. Section 3(5). No rule may place any condition on the attendance of a person at a meeting of a public body. Section 3(4). Rules established under these provisions must be flexible and should be designed to encourage public participation and attendance rather than discourage it.

The rules called for in Section 3(5) when applied to state agencies control the general course and method of the conduct of agency meetings and therefore come within the promulgation requirements of Section 33(1) of the Michigan Administrative Procedures Act. 1969 PA 306, Sec. 33(1); MCLA 24.233(1); MSA 3.560(133).

G. Rights Of The Public

1. Right of the Public to be Present

Under section 3(1) all persons shall be permitted to attend any meeting unless a closed meeting may be held in accordance with the provisions of sections 7 and 8. No conditions on attendance may be placed on the public such as requiring that an attending person provide his name or other information. Section 3(4). A person shall not be excluded from a public meeting except for a breach of the peace actually committed at the meeting. Section 3(6).

2. Rights of the Public to Address the Meeting

Section 3(5) provides that a person shall be permitted to address a meeting of a public body. The section further provides that public bodies may establish rules which regulate the conditions under which the public may address the meeting. These rules must be reasonable, flexible and designed to encourage public expression and not discourage or prohibit it.

The rules regulating the right of public address may include such controls as the length of time any one person may be permitted to address the body, the portion of the agenda set aside for public address, and a requirement that persons wishing to address the public body identify themselves and make it known ahead of time that they wish to address the body in order to facilitate the planning of time allotments to various portions of the agenda.

H. Minutes of Meetings

Minutes shall be kept of each meeting, whether such meeting is open or closed. Sections 9(1) and 7(2). Minutes shall contain at least the following information: date, time, place, members present, members absent, decisions made at the open meeting, the purposes for which a closed meeting was called, and all roll call votes taken at the meeting. Section 9(1). In the event a closed session is held, minutes shall also be taken but these minutes are not available to the public and may only be disclosed by order of a court. Minutes of closed sessions must be retained for one year and one day after approval of the minutes of the regular meeting at which the closed session was approved. Section 7(2).

The minutes of the open meetings of public bodies are public records open to public inspection and shall be available at an address designated on the posted public notice. Also, copies of the minutes shall be available to the public at the reasonable copying cost. Section 9(2). Proposed minutes of open meetings shall be available within eight (8) business days after the meeting to which the minutes refer. Approved minutes shall be available for public inspection within five (5) business days after the meeting at which the minutes are approved by the public body. Section 9(3).

I. Closed Sessions

Upon a two-thirds roll call vote of the members of a public body elected or appointed and serving, a public body may meet in closed session for any of the following reasons:

1. To consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained. Section 8(d).

2. To consult with its attorneys regarding trial or settlement strategy in connection with specific pending litigation, but only when an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body. Section 8(e).

3. To review the specific contents of an application for employment or appointment to a public office when the candidate requests that the application remain confidential. However, all interviews by a public body for employment or appointment to a public office shall be held in an open meeting pursuant to this Act. Section 8(g).

4. To consider material exempt from discussion or disclosure by state or federal statute. Section 8(h)

Closed sessions may also be held by public bodies for the following reasons without a two-thirds roll call vote:

1. To consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual agent, when the named person requests a closed hearing. Section 8(a).

2. To consider the dismissal, suspension, or disciplining of a student when the public body is part of the school district, intermediate school district or instutition of higher education which the student is attending, when the student or student's parent or guardian requests a closed hearing. Section 8(b).

3. For strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement when either negotiating party requests a closed hearing. Section 8(c).

4. Partisan caucuses of members of the state legislature. Section 8(g).

J. Remedies

1. Invalidation of Action

Where a violation is shown to have been committed, the decision made by a public body may be invalidated if the court finds that the noncompliance or failure has impaired the rights of the public. Section 10(2). The complaining party must establish the fact that the Act has been violated and that the rights of the public have been prejudiced.

Where the decision of a public body is challenged on the ground that it was not made in compliance with the requirements of the Act, the public body may, without being deemed to make any admission contrary to its interest, re-adopt the decision in compliance with the Act. Decisions so re-adopted are effective from the date of re-enactment and may not be declared invalid by reason of the initial fault. Section 10(5).

A lawsuit to invalidate a decision of a public body for a violation of the Act must be commended within sixth (60) days after the approved minutes are made available to the public. Section 10(3)(a). In cases involving the approval of contracts, the receipt of acceptance of bids, the making of assessments, the procedures pertaining to the issuance of bonds or other evidences of indebtedness, or the submission of a borrowing proposal to the electors, the legal action must be instituted within thirty (30) days. Section 10(3)(b).

Actions must be brought in the county in which the local public body serves or, if the decision challenged is that of a state public body, actions shall be brought in Ingham County. Section 10(4).

2. Injunctions and Mandamus

Besides invalidating a decision, an action may also be brought by the Attorney General, Prosecuting Attorney of the county in which the body serves, or any person, to compel compliance or to enjoin further noncompliance with the Act. Section 11(1).

A person who succeeds in obtaining injunctive relief against a public body for violation of the Act shall recover court costs and actual attorney fees. Section 11(4).

3. Personal Civil Liability

A public official who intentionally violates the Act is personally liable in a civil action for actual and exemplary damages of not more than $500.00 plus court costs and actual attorney fees to a person or group of persons bringing the action. Section 13(1). The official may not be liable more than once for each single meeting and such actions must be commenced within 180 days after the date of the violation giving rise to the cause of action. Section 13(2). Actions for damages under section 13 may be joined with actions for injunctive or exemplary relief. Section 13(3).

4. Criminal Penalties

A public official who intentionally violates the Act is guilty of a misdemeanor punishable by a fine of not more than $1,000.00. A second violation by the same official within the same term of office is punishable by a fine of not more than $2,000.00 and/or a term of not more than one year in prison. Section 12.

II.

RESPONSE TO SPECIFIC INQUIRIES

1.

S. Martin Taylor, Director, Michigan Employment Security Commission:

'Does this Act (1976 PA 267) apply to MESC referee hearings?'

Michigan Employment Security referee hearings are conducted pursuant to the mandate of 1936 ex sess PA 1, Secs. 32, 33; MCLA 421.32-421.33; MSA 17.534-17.535. The Open Meetings Act, Sec. 3(8)(b) provides:

'This act shall not apply to . . .

'(b) The employment security appeals board created under Act No. 1 of the Public Acts of the Extra Session of 1936, as amended, being sections 421.1 to 421.67 of the Michigan Compiled Laws.'

The statute is specific that it is the Appeal Board which is free of the controls of the Act and not the entire administrative structure of the Employment Security Commission. An accepted rule of statutory construction provides that specific words rule over general words. People v Smith, 393 Mich 432; 225 NW2d 165 (1975). In this case the statute must be read to cover and control the operations of the Michigan Employment Security referee hearing even though section 3(8)(b) of the Act excludes Employment Security appeal board hearings.

2.

Frances J. Miller, Secretary, State Safety Commission:

Does the Michigan Traffic Safety Information Council come within the definition of 'public body' of the act as it is not a policy-making body?

The Michigan State Safety Commission was created pursuant to the mandate of 1941 PA 188; MCLA 256.561 et seq; MSA 9.1704 et seq, and transferred by Executive Order in 1969 by a Type II transfer to the Department of State Police. Section 2 of the Safety Commission's enabling legislation, MCLA 256.562; MSA 9.1705, states that it is the duty of the Commission to, among other things, promote uniform and effective programs of safety on streets and highways, and to interchange information among the several departments of state government for more effective safety conditions.

It is my opinion that these duties bring the Safety Commission within the definition of a 'public body' provided in section 2(a) of the Act.

The promotion of effective programs to ensure highway safety is clearly an essential governmental function and therefore the Act does control meetings of the State Safety Commission.

3.

Terry L. Yonker, Executive Secretary, Michigan Environmental Review Board:

Are the Michigan Environmental Review Board and the Interdepartmental Environmental Review Committee subject to the provisions of the Open Meetings Act as 'public bodies'?

Both the Board and the Committee were established by Executive Order and they serve in an advisory capacity to state agencies and the Governor concerning environmental matters which fall within the jurisdiction of several state agencies.

The Governor created the Environmental Review Board 'pursuant to the Constitution and laws of the State of Michigan' (Executive Order 1973-9) but could only have exercised this power pursuant to the provisions of 1931 PA 195; MCLA 10.51 et seq; MSA 3.21 et seq, which authorizes the Governor to establish a special study commission. There is no authority by which the Governor is authorized to create a public body which exercises any governmental or proprietary function; such authority is vested solely in the legislature. 1931 PA 195, supra, however, does authorize the Governor to establish commissions which have the power to:

'. . . examine, study and inquire into all matters and things in relation to the purpose for which the commission was created; and shall report to the legislature in writing upon the beginning of its biennial session, and at such other times as the legislature or the governor shall direct, its findings and recommendations together with drafts of bills covering such proposed legislation as it may recommend.' MCLA 10.55; MSA 3.25

Since the definition of 'public body' in the Act covers any public body which is empowered by 'state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function,' it is my opinion that the Michigan Environmental Review Board and the related Interdepartmental Environmental Committee do not come within the definition of 'public body'.

4.

Paula Stark, Legal Liaison Division, Department of Social Services:

Does the Blind Stand Operators Advisory Committee come within within the provisions of the Open Meetings Act?

Although the operation of concessions upon state property is required by statute to be by blind people, 1939 PA 14; MCLA 393.271 et seq; MSA 15.1533(1) et seq, the Blind Stand Operators Advisory Committee is a voluntary organization which does not owe its existence to any authority granted by '. . . state constitution, statute, charter, ordinance, resolution, or rule . . .'. The organization was created in anticipation of federal regulations which as yet have not been promulgated and although it exercises an advisory function to the Department of Social Services, the fact that the Advisory Committee has no legal relationship to the State of Michigan or any of its subdivisions places that body outside the provisions of the Open Meetings Act, 1976 PA 267 and it is my opinion that it is not controlled by the provisions thereof.

5.

Civil Service Commission:

In light of Const 1963, art 11, Sec. 5, Const 1963, art 4, Sec. 48, and certain statements in the case of Viculin v Department of Civil Service, are meetings of the Michigan Civil Service Commission governed by the provisions of the Open Meetings Act?

In Viculin v Department of Civil Service, 386 Mich 375, 393; 192 NW2d 449 (1971), Justice Williams on behalf of the court stated:

'. . . We hold that neither the provisions for administrative or judicial review of the administrative procedures act were applicable to these proceedings. [Footnotes omitted]

'The Civil Service Commission is a constitutional body possessing plenary power and may determine, consistent with due process, the procedures by which a state civil service employee may review his grievance. [Citation omitted]. The legislature is consequently without power to regulate the internal procedures of the civil service commission and this fact is recognized in Const 1963, art 4, Sec. 48: . . ..'

Const 1963, art 4, Sec. 48, referred to above provides:

'The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service.'

No statute may contradict a constitutional directive. In re Opinion of the Justices, 324 Mass 746; 85 NE2d 761 (1949); see also, 16 CJS, Constitutional Law, Secs. 1, 2, 3 and 71. Statutes must be construed whenever reasonably possible, in a manner which gives a statute validity and effectiveness. Pigorsh v Fahner, 386 Mich 508; 194 NW2d 343 (1972).

As a result of the restriction imposed by Const 1963, art 4, Sec. 48, I am of the opinion that the Act does not apply to meetings of the Civil Service Commission in any case concerned with the resolution of classified employee disputes. This prohibition also applies to those activities of the Civil Service Commission involving a threat of impending disputes.

6.

Senator David A. Plawecki:

Does a teacher tenure hearing held pursuant to the Teacher Tenure Act, 1937 (Ex Sess) PA 4 as interpreted in the case of Royal Oak School District v Schulman (1) conflict with the requirements of the 1976 Open Meetings act?

It is my opinion that the Schulman case does not indicate that there is a conflict between the requirements of the Teacher Tenure Act, 1937 ex sess PA 4; MCLA 38.71 et seq; MSA 15.1971 et seq, and the requirements of the Open Meetings Act. Section 8(c) of the Open Meetings Act exempts the Teacher Tenure Commission, when acting as a board of review. The Teacher Tenure Act, supra, grants the power to a Board of Education to conduct hearings on the dismissal or demotion of tenure teachers. The Tenure Act also states:

'The hearings shall be conducted in accordance with the following provisions:

'(a) The hearings shall be public or private at the option of the teacher affected.' MCLA 38.104; MSA 15.2004.

Statutes in pari materia are to be read as a whole and must be harmonized whenever reasonably possible. City of Detroit v Michigan Bell Telephone Co, 374 Mich 543; 132 NW2d 601 (1965); OAG, 1967-1968, No 4555, p 36, 41 (April 12, 1967). Where an irreconcilable conflict exists between the provisions of two statutes covering an identical subject, the statute which deals specifically with the public body will govern over the statute which deals with the topic generally. People v Seeley, 24 Mich App 539, 545-546; 180 NW2d 333, 336 (1970). This rule must not be applied lightly, however, and in each case it should be first determined that the two sections present an uncompromising conflict. Czyszkowski v Lansing, 64 Mich App 94, 97; 235 NW2d 72, 73 (1975).

Section 8(a) of the Open Meetings Act allows a public body to meet in closed session to 'consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual agent, when the named person requests a closed hearing.' Schulman held that the decision of the hearing board is part of the hearing and that where a teacher elects a private hearing the board of education's decision to dismiss or demote may be kept private until the teacher has exhausted the appellate process.

Thus, hearings under the Teacher Tenure Act fall within the provisions of closed meeting exceptions provided for in section 8(a) of the Open Meetings Act and both statutes allow the concerned party to request and receive a closed hearing. Therefore there is no conflict between the two statutes.

7.

Senator David A. Plawecki:

Are students protected by the Open Meetings Act when a school board meets to consider their discipline or suspension, and are other public employees afforded the same protections under the Open Meetings Act as teachers are allowed under the provisions of the Teacher Tenure Act discussed above?

Section 8(b) of the Act allows the school district to consider dismissal, suspension or disciplining of a student in closed session when so requested by the student or the student's parent or guardian. Similarly, section 8(a) applies to public employees other than just school teachers. It is therefore my opinion that the provisions of the Act do allow students and public employees to request and be accorded a closed hearing when their discipline, suspension or dismissal is being considered by a public body.

8.

James Hyde, Executive Secretary, State Boundary Commission:

'It would appear that Secs. 3(2) and (3) would preclude the Commission from adopting and approving its Findings of Fact and Order through a conference phone call meeting and that these meetings would have to be held in person and in compliance with the remainder of this Act; is this a correct interpretation?'

It is my opinion that the Act sets the minimum degree of 'openness' for the meetings of public bodies. Section 1(3). Even if it were physically possible to include the public in a conference phone call meeting, the intent of the Act would not be observed. The purpose of open meetings acts is to provide members of the public with the opportunity to be present so that they can observe the manner in which public bodies transact public business. Haven v City of Troy, 39 Mich App 219; 197 NW2d 496 (1972). I therefore agree with your interpretation that phone call conference meetings are prohibited by the Act.

9.

Frances J. Miller, Secretary, State Safety Commission:

May a public body establish a rule obligating large groups who wish to attend an open meeting to give timely notice so that the public body may make suitable arrangements to accommodate the group?

Although the Act, section 3(4), provides that no prerequisite may be required of a person as a condition for his attendance at a public meeting, reasonable latitude must be read into the Act. Section 3(6) provides that a person shall not be excluded from a public meeting except for a breach of the peace committed at the meeting, and section 5 allows the public body to establish rules reasonably regulating the right of the public to address the meeting. All of these subsections must be given effect. Preston v Sleziak, 383 Mich 442; 175 NW2d 759 (1970).

If it is known, for example, that a group of 200 people plan to attend a meeting of a public body which normally meets in a room capable of seating only 20 persons, the ability of the public to observe the manner in which the public meeting is conducted will obviously be strained to the breaking point if the public body is not given advance notice by the group so that it may hold the meeting is suitable facilities. However, this should not be construed as an inhibitory condition placed on attendance which section 3(4) of the Act prohibits.

It is therefore my opinion that where a large organized group knows in advance that it will attend a public meeting and the regular meeting place of the public body is insufficient to contain the number of persons wishing to attend the meeting, the group is required to give advance notice to the public body. However, the public body is under a duty to exercise sincere efforts to accommodate the number of people who may reasonably be expected to attend.

10.

Lynn Marcy, Chairman, Board of Forensic Polygraph Examiners:

There appears to be a conflict between the provisions of the statute controlling hearings of the Board of Forensic Polygraph Examiners and the Open Meetings Act. In such a case which statute prevails and controls the requirements of such meeting?

1972 PA 295, Sec. 20; MCLA 338.1720; MSA 18.186(2), provides that hearings to consider the revocation of a polygraph examiner license shall be closed unless the respondant personally, or through counsel, submits a written request for a public hearing. The Act in section 3(1) provides:

'All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be permitted to attend any meeting except as otherwise provided in this act.'

License revocation hearings of the Board of Forensic Polygraph Examiners is an example of a specific statutory exception to the general requirement of the Act that all meetings be publicly held. Pursuant to the rule that, in case of a conflict, the specific governs over the general, it is my opinion that license revocation hearings conducted by the Board of Polygraph Examiners are to be closed unless otherwise required as provided by 1972 PA 295, Sec. 20, supra. This exception of the Board of Forensic Polygraph Examiners to the Act, however, does not apply to other meetings of the Board of Forensic Polygraph Examiners when it performs a duty other than holding a license revocation hearing.

11.

Lynn Marcy, Chairman, Board of Forensic Polygraph Examiners:

'Within those rules [rules under which individuals in attendance at a board meeting may speak or address the board], could the board require that individuals wishing to speak or address the board identify themselves for the record in advance or at the time they request recognition, or both, without violating the provisions of Act 267 prohibiting the requirement of identification for attendees?'

The Act prohibits a public body from placing conditions on the attendance of members of the public at an open meeting. Section 3(4). The Act also provides that a person shall be permitted to address a meeting of a public body. Section 3(5). The right of a person to address a public body may, however, be reasonably controlled by rules recorded by the public body. Section 3(5). It is my opinion that, to facilitate the orderly conduct of the meeting and communication between persons who wish to address the public body, it is reasonable to require a person to identify himself and give advance indication that he wishes to speak. Such a condition may be adopted as a rule in accordance with section 3(5).

12.

S. Martin Taylor, Director, Michigan Employment Security Commission:

'May a public body, other than the legislature, limit the use of time by public attendees with respect to their length of address to the public body?'

It is my opinion that a public body may limit the time that a person may address the public body. The regulation, however, must be reasonable, flexible and applied in a manner which will encourage greater public participation rather than discourage the exercise of the right of the public to address the meeting.

A rule concerning the right of a person to address the public body must be adopted by the body before it becomes effective.

The right of the public to address the meeting shall not be impaired by the absence of rules recorded by the body. The requirement that rules concerning the right of members of the public to address a public body be established and recorded does not require state agencies to utilize the full rule-promulgation procedure of the Administrative Procedures Act. The Administrative Procedures Act, 1969 PA 306, ch 3, Sec. 33; MCLA 24.233; MSA 3.560(133), allows agencies to promulgate rules describing its organization and stating the general course and method of its operations without the notice and public hearing requirements of other types of rule promulgation. It is my opinion that the rules covered by section 3(5) of the Act fall within this exception to the notice and hearing requirements of the Administrative Procedures Act.

13.

James Hyde, executive Secretary, State Boundary Commission:

The Boundary Commission has evolved a procedure wherein the public is allowed attendance at its adjudicative meetings but the right of address at such meetings is cut off. Is this practice a violation of the Open Meetings Act requirements?

The only provision of the Act which exempts adjudicative meetings of administrative bodies is section 3(7) which states that the Act does not apply to judicial proceedings. The legislature, in the next succeeding section, clearly indicated that the words 'judicial proceedings' apply only to courts of law because in section 3(8) the legislature specified certain boards, commissions or panels only when 'deliberating the merits of a case'.

An examination of the legislative history of Senate Bill No. 920, which became the Act, reenforces this conclusion. As originally introduced, SB 920 contained the following exception to the basic requirement for open meetings:

'(6) Subsections (1) and (2) shall not apply to a public body while deliberating upon or making a decision in a proceeding which involves a determination of the legal rights, duties, or privileges of a named party, after any required hearing has been held or while deliberating upon or deciding related motions or matters for which a hearing is not required in such a proceedings.' SB 920, Sec. 3(6).

The provisions of section 3(6) of SB 920 were eliminated from the Act. It is clear that had it remained, adjudicative hearings would have formed a class of exceptions to the Act. Therefore, the deletion of the proposed section must be viewed as a conscious choice by the legislature not to exempt such hearings. Therefore, adjudicative proceedings not specifically exempt from the requirements of the Act are to be controlled by the Act.

There is some question whether a board deliberating the merits of a contested case which concerns rights of an individual must hold open hearings under the Act. Goldberg v Kelley, 397 US 254; 90 S Ct 1011; 25 L Ed 2d 287 (1970); Crampton v Michigan Department of State, 395 Mich 347; 234 NW2d 352 (1976), hold that where a person is afforded an administrative hearing, such hearings must have both the appearance and the fact of fairness.

In light of these requirements, it is my opinion that any adjudication being heard involving individual rights before an administrative body which permitted any person who is not a party to the proceedings to address any remarks, whether relevant or irrelevant, to the tribunal hearing the case constitutes a denial of due process. If a person believes that he has an interest in the proceeding, he should seek to intervene and become a party.

14.

Representative Bobby D. Crim:

Does Sec. 3(10) apply to the occasion where members of a public body are invited to address a civic organization and a sufficient number of the members of such public body are present to constitute a quorum?

Clearly, this is the type of situation which section 3(10) was designed to cover. Section 2(b) defines 'meeting' as the convening of a public body at which a quorum is present 'for the purpose of deliberating toward or rendering a decision on a public policy.' [Emphasis added].

The situation described is neither the 'convening' of a public body nor is the quorum present 'for the purpose of deliberating toward or rendering a decision'. Thus, what has been described is not a meeting within the definition of the Act and at any rate, is specifically exempted by the provisions of section 3(10).

15.

S. Martin Taylor, Director, Michigan Employment Security Commission:

a. Where must notice of MES Commissioners' meetings be posted?

Section 4 of the Act provides:

'(c) If a public body is a part of a state department, part of the legislative or judicial branch of state government, part of an institution of higher education, or part of a political subdivision or school district, a public notice shall also be posted in the respective principal office of the state department, the institution of higher education, clerk of the house of representatives, secretary of the state senate, clerk of the supreme court, or political subdivision or school district.'

The MESC is a component of the Department or Labor. Therefore, notice of commissioners' meetings shall be posted in the Lansing Office of the Department of Labor and also in the principal office of the MESC which is the Department of Labor Building in the City of Detroit. Notice may also be posted at any other locations in the state considered appropriate by the public body. Section 4(b).

b. Shall the notice of the meetings reflect the address where the minutes are maintained, and, if so, would the minutes be maintained at the address where the meeting is held or at the commission headquarters?

Section 4(a) requires that a public notice of a meeting contain the name of the public body, its telephone number and its address. When the place where the meeting is to be held is different from the address of the public body, the notice must contain both addresses in order to comply with both sections 4(a) and 5. The reference in section 4(a) to 'address' is the same address as that referred to in the section which requires that the minutes be available. Section 9(2). Thus, except where a public body has no permanent office, the address of the public body and the place where the minutes must be maintained are the same.

Since the Act requires that minutes be available for public inspection at the address designated on the public notice, it may reasonably be concluded that a public body having no permanent location may select a readily-accessible location to store its minutes and may state in its notice where that location is.

16.

James Hyde, Executive Secretary, State Boundary Commission:

Does the Open Meetings Act require a formal resolution appointing a specific person to post the notice required by Sec. 5?

Section 5(1) of the Act states:

'A meeting of a public body shall not be held unless public notice is given as provided in this section by a person designated by the public body.' [Emphasis added]

Generally, administrative bodies may only act as a body in or at a lawfully convened session and speak officially only through their records. 71 CJS, Public Administrative Bodies and Procedure, Secs. 20, 22 and Commonwealth ex rel Watkins v Winchester Waterworks Co, 303 Ky 420; 197 SW2d 771 (1946).

Based on the premise that a public body may only act formally through its records, it is my opinion that requirement that a person be 'designated' to carry out the posting of public notice means that such person must be formally chosen by resolution noticed in the minutes of the public body.

17.

James Hyde, Secretary, State Boundary Commission; and Lynn P. Marcy, Chairman, Board of Forensic Polygraph Examiners:

If a public body does not hold regular meetings at predetermined times, does the 1976 Open Meetings Act require that these public bodies establish a schedule of regular meetings henceforth?

It is my opinion that organizations are not required to establish a regular meeting schedule as a result of the Act. This is not to say, however, that public bodies may avoid the notice requirements by refusing to establish a regular meeting schedule. Public bodies which meet only when necessary may continue to meet on this basis and are not subject to the 10-day notice requirements of section 5(2) of the Act. They must, however, observe the requirements of the 18-hour notice for special meetings provided for in section 5(4) of the Act.

18.

S. Martin Taylor, Director, Michigan Employment Security Commission:

'For purposes of calling a closed meeting under Sec. 7(1), must there be a two-thirds roll call vote of all Commissioners or only a two-thirds roll call vote of the Commission members attending (assuming the existence of a quorum)?'

Section 7(1) provides:

'A two-thirds roll call vote of members elected or appointed and serving shall be required to call a closed session, except for the closed sessions permitted under Sec. 8(a), (b), (c), and (g) . . ..'

The Act should, when there is uncertainty, be read to favor open meetings. Laman v McCord, 245 Ark 401; 432 SW2d 753 (1968), see also, 38 ALR3d 1070, 1075. It is my opinion that this principle leads to a reading of section 7(1) to mean that the two-thirds vote must be of the members of the public body appointed to and serving, not merely those attending that particular meeting. In other words, if a quorum of the public body is present but two-thirds of the public body's appointed and serving members are not present, then that public body is incapable of a calling a closed session of that meeting.

19.

S. Martin Taylor, Director, Michigan Employment Security Commission:

'Are the reasons for which a vote for closed meetings may be held [sic] as permitted in section 7, limited to those reasons enumerated in section 8?'

The policy of the Act is to limit the number of closed sessions. Except where a specific statute supersedes the provisions of the Act, (see the above discussion of license revocation hearings before the Board of Forensic Poylgraph Examiners, supra) it is my opinion that the procedure for calling a closed session provided for in section 7 may only be used when the specific circumstances enumerated in section 8 of the Act are present.

20.

Lynn P. Marcy, Chairman, Board of Forensic Polygraph Examiners:

During a day-long board meeting certain items are considered which must be open and certain items which may permissibly be considered in closed session are also scheduled for consideration. May a public body mix open and closed sessions or must a separate meeting be called for consideration of matters which may be considered in closed session?

There is no provision in the Act which prohibits a public body from noticing an open meeting and then, after consideration of matters required to be subject to public scrutiny, going into a closed session to discuss matters permitted under section 8. All of the other requirements of the Act must, however, be observed. I refer here to the requirement of separate minutes and the requirement that the roll call vote and the purpose for calling the closed session be entered into the minutes of the meeting at which the vote is taken. Section 7. In no event may a public body extend this permissible flexibility to discuss subjects at a closed meeting which must be discussed at an open meeting.

21.

S. Martin Taylor, Director, Michigan Employment Security Commission:

'Must all interviews with respect to employment applications, for positions with respect to which the Commission has reserved final decision to itself (i.e., 15-level positions, managers, referees, etc.), be held in public?'

If a public body either voluntarily or by mandate of its enabling statute, reserves final decision for appointment to certain levels of employment to itself, there is no exception which would allow such considerations to be held in a closed session. Section 8(f) of the Act allows a closed session to review the specific contents of an application for employment or appointment to a public office when the candidate requests that the application remain confidential. Even though the contents of the application may be reviewed in closed session, all interviews for employment or appointment to a public office must be held in open meeting.

It is therefore my opinion that interviews which a public body conducts itself must be held at a public meeting.

22.

S. Martin Taylor, Director, Michigan Employment Security Commission:

Can interviews with respect to lower level employment applications be conducted in private by agency staff?

To require a public body to conduct all interviews for all positions in public and attach thereto all of the requirements for public notice is beyond the contemplation of the Act. Such a requirement would occupy an inordinate amount of time of the public body in conducting employment interviews. Therefore, it is my opinion that the holding in the previous question is limited to those cases where employment interviews must be held by the body itself, either because of the enabling statute or as a matter of policy adopted by that body. In all other cases, where the public body is not required to interview the applicant, interviews for employment may be conducted in private by staff of the public body.

23.

Senator William Faust:

Are the requirements of Sec. 8(f) an infringement upon the individual's right of privacy while seeking employment, especially when considering the possible affect such knowledge could have on a person's relationship with a current employer?

As discussed above, the section 8(f) requirements do not apply to all lower level employment applications. It applies only to applications for employment or appointment to a public office where the interview must for one reason or another be conducted by the public body itself. Where section 8(f) does, in fact, require open meetings to interview perspective applicants for public office, it is my opinion that there is no invasion of the person's right of privacy. When the person submits an application for public employment or appointment to a public office, he must be deemed to have waived his right of privacy with respect to that application. The law permits a knowing waiver of the constitutionally-recognized right of privacy, Earp v City of Detroit, 16 Mich App 270; 167 NW2d 841 (1969). See also, 77 CJS, Right of Privacy, Sec. 3, p 401-402.

It is therefore my opinion that the requirement that an interview for employment or appointment to a public office be conducted in open meetings does not violate the constitutional right of privacy of the applicant for the reason that the interest of the public in knowing the qualifications and hiring procedures of its officials is paramount to the applicant's right of privacy, and also for the reason that the applicant may be deemed to have waived his right of privacy with respect to the application for this position.

24.

Senator David A. Plawecki, Senator William Faust, and Representative Thomas H. Brown:

Is there a violation of equal protection by the fact that only certain categories of job applicants are required by the terms of the Open Meetings Act to have public interviews whereas other public employees may be hired by personnel administrative officers in private interviews?

The Equal Protection Clause of the Constitution prohibits a legislative body from enacting a law which imposes an arbitrary or unreasonable distinction and which discriminates between persons similarly situated. McDonald v Board of Election Commissioners of Chicago, 394 US 802; 89 S Ct 1404; 22 L Ed 2d 739 (1969).

'Though the wide leeway allowed by the States by the Fourteenth Amendment to enact legislation that appears to affect similarly situated people differently, and that presumption of statutory validity that adheres thereto, admit of no settled formula, some basic guidelines have been firmly fixed. The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them.' McDonald, 394 US 802, 808-809

It is my opinion that the distinction in section 8(f) between public officials and public employees who must be interviewed in public meetings and employees not subject to open meeting interviews, is rationally related to the legitimate state goal of making government more open and accountable to the people. Also, there is a legitimate state interest in ensuring the ability of public bodies to carry out their mission of public service without being required to hold every employment interview at a public meeting. I therefore find no violation of equal protection in the Act.

25.

Senator David A. Plawecki, Senator William Faust, and Representative Thomas H. Brown:

'Does the Open Meetings Act apply only to committees and subcommittees composed of members of the public body, or to any group of persons appointed as a committee/subcommittee by the public body?'

The Act defines 'public body' as:

'. . . any state or local legislative or governing body . . . which is empowered . . . to . . . perform a governmental or proprietary function.' Section 2(a)

The definitions of essential words in the Act have interlocking relationships and the definition of 'public body' is tempered by the definition of 'meeting', which is:

'. . . the covening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy.' [Emphasis added]

'Decision' is defined in section 2(d) to mean:

'. . . a determination, action, vote or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy.'

Senate Bill No. 920, the original form of the Open Meetings Act, would also have included within the definition of a public body, 'any . . . state or local governmental entity to make recommendations concerning the exercise of governmental authority. . . .' SB 920, section 2(a).

It is apparent that the final version of the definition of 'public body' is less comprehensive than the definition originally offered. This reduction in the compass of the Act's definition was the very first amendment offered on the bill. Senate Journal 125, p 2400 (11/18/75). That the more inclusive definition was not a part of the final Bill indicates that the legislature specifically rejected such advisory being included within the meaning of the term 'decision'. Based on the wording of the enacted version of the Act and the intent of the legislature as indicated by the changes from the original form, it is my opinion that the Act does not apply to committees and subcommittees of public bodies which are merely advisory or only capable of making 'recommendations concerning the exercise of governmental authority'. These bodies are not legally capable of rendering a 'final decision'. In other words, a subcommittee which can only make recommendations to the public body for final decision is not required to hold its committee meetings in public hearings. I do believe, however, that where such subcommittee contains the entire body of the 'public body' which it serves, it would be a violation of the Act to allow such subcommittees to meet in closed session. The probable result of such meeting would be the presentation to the public meeting of a fait accompli and this is to be avoided. Members of the public must be given the opportunity to be present so that they may observe the manner in which public bodies transact public business. Haven v City of Troy, supra, and Adler v City Council of Culver City, 184 Cal App 2d 763; 7 Cal Rptr 805 (1960).

26.

Senator Bill S. Huffman:

Are school superintendents of K-12 school districts subject to the requirements of Sec. 8(f) of the Open Meetings Act?

School superintendents are the highest ranking officials employed by a school system. Pursuant to the provisions of sections 1246 and 1247 of the School Code of 1976; MCLA 380.1246, 380.1247; MSA 15.41246, 15.41247, they must be hired by the school board. School boards must be direct parties to the contracts of employment with their professional employees and may not subcontract this responsibility or in any other way delegate their authority to hire teachers and administrators. It is therefore my opinion that the provisions of section 8(f) of the Act does apply to employment interviews for the position of school superintendent with local K-12 school boards.

Certain school boards have developed the practice of citizen participation on hiring advisory committees. Again, these committees are advisory since the law requires the decision to hire a professional to be made by the 'board'. Since the citizen participation boards are legally incapable of rendering a 'decision' as the term is defined by the Act, they are not subject to the requirements of the Act.

27.

James Hyde, Executive Secretary, State Boundary Commission:

Must minutes be approved by the original five members of the Boundary Commission (3 state, 2 county members) or may they be approved only by the state commissioners?

Section 9 requires that the minutes of a meeting be available for public inspection within a certain period of time after the meeting. The Act does not direct the manner of approval or the time period within which minutes must be approved. Section 9(3) requires that proposed minutes shall be available for public inspection not more than eight business days after the meeting. Approved minutes shall be available for public inspection not later than five business days after the minutes are approved. Section 9(3). No special meeting need be called to approve proposed minutes. Thus, if the Commissioners do not meet for six or eight months after the meeting at which the minutes were taken, there is no reason why the proposed minutes may not be formally approved until the next meeting of the Commissioners.

28.

Senator David A. Plawecki, Senator William Faust, Representative Thomas H. Brown, Donald Fichter, Director, Municipal Finance Commission, Frances J. Miller, Secretary, State Safety Commission:

Who is a 'public official' who may be held liable to the civil and criminal penalties provisions in Secs. 12 and 13 of the Open Meetings Act?

The statute states that public officials are subject to the penalties provided and does not mention public employees.

Penal statutes must be strictly construed in favor of the person sought to be charged under the Act. People v Lockwood, 308 Mich 618; 14 NW2d 517 (1944), and 82 CJS, Statutes, Sec. 389(1), p 924.

The test for distinguishing between a public officer and a public employee may be found in People v Freedland, 308 Mich 449, 457-458; 14 NW2d 62 (1944):

"After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature:

'(1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the ligislature;

'(2) It must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public;

'(3) The powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority;

'(4) The duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body;

'(5) It must have some permanency and continuity, and not be only temporary or occassional."

See, OAG, 1973-1974, No 4799, p 116, 117, 118 (February 1, 1974), see also, 18 MLP, Officer, Sec. 1, p 205-206.

It is therefore my opinion that the phrase, 'public official', used in sections 12 and 13 is limited to the definition set forth above and may not be expanded to include public employees.

29.

Senator John A. Welborn:

'Regarding the section that allows a private citizen to press charges against an individual elected official, would that individual have to pay for his or her own counsel, or would that be a legitimate governmental expenses for the governmental unit if approved by the majority of the governing body?'

The Michigan Supreme Court has held that it is a legitimate expense for a public purpose to pay for the legal fees involved in defending a public official against suits for negligance or intentional torts incurred as a result of the performance of his duties in office. Messmore v Kracht, 172 Mich 120; 137 NW 549 (1912). See also, letter opinion of the Attorney General to Barry Brown, Director, Michigan Department of Labor (December 6, 1972). In OAG, 1975-1976, No 4947, p ___ (March 23, 1976), it was my opinion that a city could indemnify one of its public officers for the legal expenses incurred in defending against an allegation of wrongful conduct by him in the discharge of his official duties.

It is my opinion therefore that where a public body elects to provide counsel for a member of the public body charged with a violation of the Open Meetings Act under section 12 or 13, whether such charge constitutes a tort or a crime, such expenditures constitute a legitimate public expense and may be authorized.

30.

S. Martin Taylor, Director, Michigan Employment Security Commission and Donald Fichter, Director, Municipal Finance Commission:

Should certificates of compliance with the Act be included on contracts or leases or bond authorizations which have been approved by public bodies?

A public official is presumed to have properly exercised the authority of his office. This is stated in section 10(1):

'Decisions of a public body shall be presumed to have been adopted in compliance with the requirements of this act.'

Also, Leach v Racing Commissioner, 340 Mich 202; 65 NW2d 746 (1954).

Under certain circumstances, however, particularly those where financial stability of the transaction depends upon absolute confidence that all of the preprequisites of the action have been properly performed, such as the issuance of bonds or the sealing of a public contract, more than the presumption provided by law may be desired. In such cases it is reasonable to include a certificate of compliance with such public action. Such certificates are neither required nor forbidden by the Act but may be practiced in certain cases of situations. It is therefore my opinion that where bond counsel require a certificate of compliance with the Act in order to approve a bond issue or where a contract offer may be accepted because of a concern that a contract may have been authorized without complying with proper procedure, the attachment of a certificate of compliance with the Act is permissible.

31.

Donald Fichter, Director, Municipal Finance Commission:

Does Sec. 9(1) which requires a list of the members absent from the meeting refer to ex officio members or to a regular 'stand-in' for that member?

It is my opinion that where an ex officio member of a committee is authorized to appoint or designate another person to represent him at a meeting, the designee is the proper attendant at the meeting and it is his presence or absence which should be noted in the minutes as required in section 9(1).

32.

Senator Richard J. Allen:

'What procedures are necessary to follow to constitute a legal open meeting and if these procedures have not been followed, what becomes of official transactions during above-said meeting?'

This request, phrased as it is in general terms, has already been answered by the above discussion.

Frank J. Kelley

Attorney General

(1) 68 Mich App 589; 243 NW2d 673 (1976).