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. 6752

March 10, 1993

OPEN MEETINGS ACT:

Recessing a regular meeting of a county board of commissioners to hold committee meetings for which there has been no notice posted

COUNTY BOARD OF COMMISSIONERS:

Recessing a regular meeting of a county board of commissioners to hold committee meetings for which there has been no notice posted

A public body holding an open meeting in compliance with the Open Meetings Act may recess the open meeting to hold subquorum committee meetings for which no public notice has been posted, provided no quorum of the public body will be present at the committee meetings, the committees are purely advisory in nature, and deliberation on a common topic leading to a decision by the public body does not take place among the committees.

The Open Meetings Act applies to any committee meeting that involves a quorum of the public body.

Honorable Philip E. Hoffman

State Representative

The Capitol

Lansing, MI

You have asked whether a regular meeting of a county board of commissioners may be recessed and committee meetings held for which there has been no public posting of notice.

To answer your question, we must examine the Open Meetings Act (OMA), 1976 PA 267, MCL 15.261 et seq; MSA 4.1800(11) et seq. Section 5(1) of the OMA provides that "[a] meeting of a public body shall not be held unless public notice is given as provided in this section." "Public body" is defined at section 2(a) of the OMA as "any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered ... to exercise governmental or proprietary authority or perform a governmental or proprietary function." "Meeting" is defined in section (2)(b) of the OMA 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."

It is well established that whenever a quorum of a public body meets to discuss public business, it is a meeting subject to the OMA. OAG, 1977-1978, No 5183, pp 21, 25 (March 8, 1977). Thus, if any committee that will meet during the recess of the public body constitutes a quorum of the public body, the provisions of the OMA apply, and notice must be given.

Likewise the notice provisions of the OMA apply if subquorum committees hold a joint meeting so that a quorum of the public body results. OAG, 1989-1990, No 6636, p 253, 254 (October 23, 1989), concluded:

[I]f a joint meeting of two committees of the board results in the presence of a quorum of the board of commissioners, it must comply in all respects with the Open Meetings Act, and notice of the joint meeting must include the fact that a quorum of the board of commissioners will be present. [ Emphasis added.]

Thus, if any of the committees to which you refer plan to meet together and a quorum of the public body will be present, the public body must post notice of the committee meeting, and include in that notice that a quorum of the public body will be present. Id. See also, OAG, 1981-1982, No 6057, p 622 (April 20, 1982) (concluding that a subquorum committee cannot meet in the presence of other members of the public body, thereby constituting a quorum of the public body, without notice to the public).

Additionally, I would note that if subquorum committees deliberate separately on common issues, resulting in a decision by the entire body, the public body must comply with all provisions of the OMA, including the notice requirements. See, Booth Newspapers v Wyoming City Council, 168 MichApp 459, 471-472; 425 NW2d 695 (1988), and Booth Newspapers v U of M Board of Regents, 192 MichApp 574, 581; 481 NW2d 778; lv gtd ____ Mich ___; 491 NW2d 825 (1992). Only an advisory committee that is incapable of rendering final decisions is excused from compliance with the OMA. OAG, 1977-1978, No 5183, p 40, supra.

Where committee meetings are subject to the OMA, an open session may not be recessed to hold committee meetings when appropriate notice of the committee meetings has not been posted. OAG, 1977-1978, No 5183, p 38, supra, concluded that the OMA permits a public body to notice an open meeting and then, after consideration of matters required to be subject to public scrutiny, recess into a closed session to discuss matters permitted under section 8. Similarly, open meetings may be recessed while the public body holds committee meetings that are not subject to the OMA.

It is my opinion, therefore, that a public body holding an open meeting in compliance with the Open Meetings Act may recess the open meeting to hold subquorum committee meetings for which no public notice has been posted, provided no quorum of the public body will be present at the committee meetings, the committees are purely advisory in nature, and deliberation on a common topic leading to a decision by the public body does not take place among the committees. The Open Meetings Act applies to any committee meeting that involves a quorum of the public body.

Frank J. Kelley

Attorney General