STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5760

August 26, 1980

STATE BOARD OF ETHICS:

Subject to Open Meetings Act

STATE BOARD OF ETHICS:

Disposal of records

OPEN MEETINGS ACT:

State Board of Ethics subject to

The State Board of Ethics is subject to the Open Meetings Act.

The State Board of Ethics may meet in closed session when it appears necessary for the protection of individual rights; in doing so, however, it is required to comply with the provisions of the Open Meetings Act with respect to the holding of closed sessions.

Records and files of the State Board of Ethics concerning a dismissed complaint or a terminated investigation may be suppressed to protect an individual's privacy but may only be disposed of by the State Board of Ethics in accordance with the procedures set forth in 1948 1st ex sess PA 51, Sec. 13c.

Mr. Theodore Swift

Chairman

State Board of Ethics

320 South Walnut Street

Lansing, Michigan 48909

You have requested my opinion on the following questions:

The State Board of Ethics was created by 1973 PA 196; MCLA 15.341 et seq; MSA 4.1700(73) et seq. 1973 PA 196, supra, Sec. 3(2) states:

However, 1973 PA 196, supra, Sec. 5(3) and (4) further provides:

The Open Meetings Act, 1967 PA 267, supra, Sec. 2(a), defines 'public body' to mean:

OAG, 1977-1978, No 5183, p 21 (March 8, 1977), stated that 1976 PA 267, supra, did not apply to advisory bodies capable only of making recommendations concerning the exercise of governmental authority. Since the compulsory language in 1973 PA 196, Secs. 5(3), and (4), supra, obligates the appointing authority to act upon the State Board of Ethics' recommendation, it cannot be considered merely an advisory body. It is therefore a 'public body' within the definition of that term in 1976 PA 267, supra.

However, 1973 PA 196, supra, Sec. 6(d) states:

The letter opinion to Representative Thomas H. Brown dated March 18, 1977, supra, considered the possible conflict of the requirements of the Open Meetings Act, supra, and provision in statutes creating state boards, agencies and commissions and contained the following pertinent observation:

While the Legislature responded to this suggestion by the introduction and enactment of a large number of bills to subject certain state agencies, boards and commissions enumerated in the letter opinion to Representative Brown dated March 18, 1977, supra, specifically to the provisions of the Open Meetings Act, supra, in 1978, no bill was introduced to subject the State Ethics Commission expressly to the Open Meetings Act, supra, nor was any effort made to amend HB 5078 (later enacted as 1978 PA 352) which was introduced to amend 1973 PA 196, Sec. 2, and to add a Sec. 2b protect public officers and employees who report violation by other public officers and employees so as to subject to the Commission to the Open Meetings Act, supra.

This failure to amend 1973 PA 196, supra, in 1978 is not determinative. It is clear that the Legislature intended the provisions of 1967 PA 267, supra, to apply to a public body which is empowered by law to exercise governmental authority or to perform a governmental function. The State Board of Ethics is empowered under 1973 PA 196, Sec. 5(3) and (4), supra, to make recommendations which compel appointing authorities to initiate proceedings which may include dismissal of public employees in state service. Further, meaning and effect may be given to both the Open Meetings Act, 1976 PA 267, supra, and 1973 PA 196, Sec. 6(5), supra. Indeed, the canons of statutory construction require, wherever possible, that two statutes on the same subject be harmonized and meaning given to both so as not to deny effectiveness to either. Paquin v Northern Michigan University, 79 Mich App 605; 262 NW2d 672 (1977).

The Open Meetings Act, supra, and 1973 PA 196, supra, however, may be harmonized by holding that the State Board of Ethics may meet in closed session when it appears necessary for protection of individual rights as long as it follows all the other requirements of the Open Meetings Act, including those regarding notice of the meeting of the Board, 1976 PA 267, supra, Sec. 4; the holding of closed sessions upon two-thirds roll call vote of members elected and serving on the Board, 1976 PA 267, supra, Sec. 7; and maintaining of minutes calling a closed session as well as minutes of the closed session, 1976 PA 267, Sec. 7, supra.

It is, therefore, my opinion that the State Board of Ethics is subject to the Open Meetings Act, supra, and when it meets in closed session for the protection of individual rights, it must comply with provisions of the Open Meetings Act, supra, with respect to the calling and holding of the closed session.

With respect to your second question, under the rule-making authority provided in 1973 PA 196, Sec. 6, supra, the Board promulgated rules of practice and procedure in conformity with the requirements of the Administrative Procedures Act of 1969; 1969 PA 306, MCLA 24.201 et seq; MSA 3.560(101) et seq. Administrative Code 1978 AACS, R 15.8(2) provides:

Subsequent to the promulgation of these rules, the Freedom of Information Act, 1976 PA 442; MCLA 15.231 et seq; MSA 4.1801(1) et seq, was enacted to provide public access to public documents. However, 1976 PA 442, supra, Sec. 13(1)(a), provides that a public body may exempt from disclosure as a public record:

In determining whether the release of information would constitute a clearly unwarranted invasion of an individual's privacy, the Board must weigh the relative value of disclosing particular information to the public having the right to know how the business of the Board is being conducted versus the individual's right of privacy. Department of the Air Force v Rose, 425 US 352; 96A S Ct 1592; 48 L Ed 2d 11 (1976). However, Rule 15.8(2) is compatible with 1976 PA 442, supra, since records will be suppressed at the direction of the Board as a protection of individual rights only if a determination has been made that a violation of the Act is not occurring or has not occurred.

1976 PA 442, supra, does not require that public records be retained. However, 1931 PA 328, Sec. 491; MCLA 750.491; MSA 28.759, states that all official books, papers or records created by or received in any office or agency of the state are public property and shall be disposed of only in accordance with 1948 1st Ex Sess PA 51, Sec. 13c; MCLA 18.13c; MSA 3.516(13)c, which provides that the head of each agency shall maintain files only of records: (a) needed for the continued effective operation of the agency; (b) to constitute adequate and proper recordings of its activities; and (c) to protect the legal rights of the state and the people.

The records and files concerning any dismissed complaint or terminated investigation constitute the adequate and proper recordings of the State Board of Ethics, and, as such, must be maintained by the Board. In addition, 1976 PA 267, supra, Sec. 7(2), requires that minutes of a closed session be retained for a year and a day after approval of the minutes of the regular meeting at which the closed session was approved.

It is, therefore, my opinion that records and files concerning any dismissed complaint or terminated investigation may be suppressed to protect an individual's privacy, but may only be disposed of by the State Board of Ethics in accordance with 1948 1st Ex Sess PA 51, Sec. 13c, supra. See OAG, 1977-1978, No 5032, p 92 (April 14, 1977).

Frank J. Kelley