STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5310

June 7, 1978

OPEN MEETINGS ACT:

Deliberations of the Public Service Commission

PUBLIC SERVICE COMMISSION:

Open Meetings Act

The Public Service Commission is required to comply with the provisions of the Open Meetings Act when it meets to obtain and consider information from its staff relative to issues of fact and law contained in a proposal for decision.

The Public Service Commission is required to comply with the provisions of the Open Meetings Act when the only topic of discussion during a meeting with its staff deals with the form and style which should be given to a written decision or order of the Commission.

Every decision of the Public Service Commission must be discussed at an open meeting except those specifications exempted under section 8 of the Open Meetings Act, discussions of matters involving section 11 of the motor carriers act, and accident reports and certain trade secrets pursuant to the gas safety standards act.

The rule adopted by the Public Service Commission defining the portion of a hearing of a particular matter at which a member of the public may address it is valid and there is no additional right of members of the public to address the commission during its deliberations of the same matter.

Mr. Daniel J. Demlow

Chairman

Public Service Commission

Box 30221

Long Commerce Park

Lansing, Michigan 48909

You have asked my opinion on questions which may be rephrased as follows:

Your questions will be addressed seriatim.

1. Is the Public Service Commission required to comply with the provisions of the Open Meetings Act when it meets to obtain and consider information from its staff relative to issues of fact and law contained in a proposal for decision?

1976 PA 267, supra, Sec. 2(b), defines 'meeting' to mean

In addition, the Open Meetings Act, Secs. 3(2) and (3) provide:

In responding to this question, it is also important to note that the Open Meetings Act, supra, Sec. 3(8) provides that the Act does not apply to five named boards and commissions only when these boards and commissions are deliberating the merits of a case. The five named boards are: (a) the worker's compensation appeal board; (b) the employment security appeals board; (c) the teacher tenure commission; (d) an arbitrator or arbitration panel appointed by the employment relations commission; and (e) an arbitration panel selected to arbitrate a medical malpractice claim.

Thus, as noted in OAG, 1977-1978, No 5183, Part II, Sec. 13, p ___ (March 8, 1977):

Thus, as the Public Service Commission is not among the excepted commissions listed in the Open Meetings Act, Sec. 3(8), supra, its deliberations on the merits of a case are subject to the provisions of the act.

Where the commission meets to consider information from its staff relative to issues of fact and law[ ⁽²⁾ contained in a proposed decision, the meeting must be open to the public because issues of fact and law contained in a decision or order of the commission are important parts of the decision and the legislature has indicated its intent that all deliberations concerning the merits of a case must be considered and discussed at an open meeting.

Section 85 of the Administrative Procedures Act, 1969 PA 306, Sec. 85; MCLA 24.285; MSA 3.560(185), provides that a final decision or order of an agency in a contested case must include findings of fact and conclusions of law. This section further requires that findings of fact be based exclusively on the evidence and on matters officially noticed. Since the findings of fact of the commission will be crucial in determining its ultimate decision, a discussion between the commission and members of its staff concerning facts and law must be considered as part of the deliberations toward the rendering of its decision.

It is, therefore, my opinion that, when a multi-member, quasi-judicial body, such as the Public Service Commission, meets to consider information from its staff relative to issues of fact and law contained in a proposal for decision, it is deliberating toward a decision within the scope of the Open Meetings Act, supra, and must meet at a meeting to which the public is to be admitted.

2. Is the Commission 'deliberating toward . . . a decision' when the only topic of discussion during a meeting with its staff is the form and style which a written decision or order should have?

Section 85 of the Administrative Procedures Act, supra, defines the form and content of a final decision and, as noted, requires that the decision include findings of fact and conclusions of law. It further states that findings of fact shall be based exclusively on the evidence and on matters officially noticed and that, if the findings of fact are set forth in statutory language, it shall be accompanied by a concise and explicit statement of the underlying facts supporting them.

Therefore, a meeting convened to discuss the form and style of a decision or order of the commission must be considered as part of the deliberation which goes into the preparation of the final decision for, what may appear to be only a matter of form and style, may easily have an impact on the interpretation given to the final decision. A determination of whether to exclude reference to a certain fact or to rephrase the explication of certain facts can result in a difference in interpreting the decision itself. I, therefore, conclude that the discussion of the form and style of a decision or order of the commission is part of the deliberation toward and rendering of the final decision.

3. What matters may be discussed by the Public Service Commission at a closed session?

Section 8 of the Open Meetings Act provides:

Careful research has revealed only three statutes explicitly protecting material coming before the commission from disclosure. The motor carriers act, 1933 PA 254; MCLA 479.1 et seq; MSA 22,566 et seq, provides in Section 11 of the Act:

The gas safety standards act, 1969 PA 165, Sec. 7; MCLA 483.157; MSA 22.1332(7), provides that accident reports available for use in judicial proceedings should be available to the public only in a manner which does not identify individuals. Section 8 of the Act pertains to disclosure of certain trade secrets, and provides that the information shall be available only to other officers or employees of the commission concerned with carrying out the provisions of the gas safety standards act, or to the duly authorized committees of the legislature. 1969 PA 165, Sec. 8; MCLA 483.158; MSA 22.1332(8).

While other materials coming before the commission may be exempted from disclosure under Section 13 of the Freedom of Information Act, the application of exemptions provided by this Act depend upon circumstances surrounding the information or receipt of it by the Commission.

4. Are there any kinds of decisions within the scope of jurisdiction of the Public Service Commission which do not involve the formulation of public policy so that they may be discussed at a closed session?

In view of the broad coverage of the act and the limited number of exceptions to the act, I am constrained to conclude that the legislature intended that every decision made by a public body is assumed to be a decision that effectuates public policy. The specific exemptions are listed in Sec. 8 of the Open Meetings Act, supra, and must be deemed to be the only exceptions to the requirement that discussions and deliberations of a public body be held at an open meeting.

5. Must the Commission permit citizens to address it when it deliberates a final decision in a contested case?

The Open Meetings Act, Sec. 3(5), provides in pertinent part:

Administrative Code, 1968 AACS, p 4831, R 460.21 provides for intervention by parties in interest and Administrative Code, 1968 AACS, p 4826, R 460.26 establishes a right to participate in a matter before the Public Service Commission without intervention. Thus, the Public Service Commission has established a rule defining the portion of the hearing of a particular matter at which a member of the public may address it. In Royal Oak School District v Schulman, 68 Mich App 589; 243 NW2d 673 (1976), the Court of Appeals held that a decision in a contested case hearing is part of the hearing of that matter. Therefore, the fact that members of the public are permitted to address the commission during the time that testimony is offered and received, by virtue of a rule established and recorded by the commission, conforms to the requirements of the Open Meetings Act. There is, therefore, no right on the part of the members of the public to address the commission during its deliberations of the same matter. The commission may, however, establish this right by adoption of a rule or by amendment of existing rules. The current practice of the commission of allowing members of the public to address that body after a decision has been rendered in a particular matter is in accord with the letter and the spirit of this opinion.

Frank J. Kelley