STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6358

April 29, 1986

OPEN MEETINGS ACTS:

Exclusion of elected or appointed officers from closed session of public body

Exclusion from a closed session of a public body of a person intruding upon the meeting

Notice of time and place of closed session if recessed or reconvened to remove intruder

Elected municipal officers, department heads, and other officers and individuals who are not members of a public body may be excluded from attending a closed session of the public body.

An elected officer of a municipality, who is not a member of the city council, may be excluded from a closed session of the city council convened to discuss pending litigation with the city attorney, despite the fact that the elected officer is named as a party with the city in the litigation.

A person intruding upon a closed session of a public body may be excluded therefrom by forcible removal by a law enforcement officer or the removal may be accomplished by recessing and moving the closed session to another location.

A public body recessing and removing its closed session to a different location in order to secure the removal of an individual intruding upon the closed session is not required to provide the 18-hour notice to the public of the time and place of the recessed closed session, provided the closed session reconvenes within 36 hours.

Honorable Dennis M. Dutko

State Representative

Capitol Building

Lansing, MI 48909

You have requested my opinion on several questions pertaining to the Open Meetings Act, MCL 15.261 et seq; MSA 4.1800(11) et seq.

Your first question is:

In OAG, 1979-1980, No 5532, p 324 (August 7, 1979), a similar question was presented as to whether a public body, having properly convened in closed session, could selectively exclude persons from the closed meeting. Specifically at issue was the propriety of excluding a newspaper reporter from a closed meeting where a board of education had permitted a minister, the assistant superintendent of schools, the school principal and an education association official to be present to assist the board in considering the suspension of a tenured teacher.

That opinion reviewed each of the eight situations in which a closed session is authorized under the Open Meetings Act, MCL 15.268; MSA 4.1800(18), and concluded:

Thus, assuming that a closed session is otherwise lawful under the Open Meetings Act, a public body may selectively include certain individuals in the closed session while at the same time excluding all other individuals.

The reasoning of OAG, 1979-1980, No 5532, applies with equal force to the question presented here. While a public body is free to exercise its discretion to request the assistance of certain individuals in its closed session deliberations, no provision of the Open Meetings Act requires that any particular individuals who are not members of the public body be permitted to attend.

Additional support for this proposition is found in OAG, 1977-1978, No 5286, p 403 (March 31, 1978), which concluded that a city councilperson acting in his individual capacity had no greater right to participate in city business than any other member of the public and, therefore, could be excluded from collective bargaining sessions closed to the public where a bargaining agent or committee had been appointed to act on the city's behalf.

It is my opinion, in answer to your first question, that a public body which has lawfully convened in a closed session in accordance with MCL 15.268; MSA 4.1800(18), may exclude elected municipal officers, department heads and other officers and individuals who are not members of the public body from attending the closed session.

Your second question is:

This question requires consideration of whether the discretion of a public body to exclude non-members of the body from closed sessions as discussed above should be limited where the purpose of the closed session is to consult with the public body's attorney concerning pending litigation and where the non-member is a co-party in that litigation.

The Open Meetings Act, MCL 15.268(e); MSA 4.1800(18)(e), permits a public body to meet in closed session 'to consult with its attorney 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.' An examination of this subsection and of the remaining provisions of the Open Meetings Act reveals that the Legislature had made no special provision governing the specific situation you have described. In the absence of such a special provision directing that non-member co-parties to litigation have a right to attend such closed sessions, no such right can be inferred. Rather, it must be concluded that attendance at such closed sessions is governed by the principles discussed above in response to your first question and, thus, rests in the sound discretion of the public body.

It may be observed, moreover, that a city council may have good reasons for excluding an elected official of the city from a closed council session called to discuss pending litigation, even though the excluded official is a co-defendant. It is entirely possible, for example, that the interests of the council and the elected official in the lawsuit may be adverse. Under such circumstances, the inclusion of the elected official could seriously hamper the public body's ability to fully and candidly discuss its litigation strategy with its attorney. Thus, while it may on occasion be advisable and prudent for the council to include all co-defendants in such closed sessions, on other occasions it may be more prudent, and may better serve the public interest, to exclude co-defendants who are not members of the public body. The Open Meetings Act contains no provisions which would limit a public body's discretion in making such a determination.

It is my opinion, in response to your second question, that a city council may exclude elected officers who are not members of the council from a closed session held to consider trial or settlement strategy in pending litigation, even though the excluded public officer is named as a party with the city in that litigation.

Your third and fourth questions may be combined and re-phrased as follows:

While there are no express provisions in the Open Meetings Act regarding the exclusion of unauthorized persons from closed sessions of a public body, the Act does provide for the exclusion of persons from public meetings of the public body under certain limited circumstances. Specifically, MCL 15.263(6); MSA 4.1800(13)(6), provides:

The Michigan Court of Appeals had occasion to consider this provision in Regents of the University of Michigan v Washtenaw County Coalition Against Apartheid, 97 Mich App 532; 296 NW2d 94 (1980), lv den, 411 Mich 878 (1981). There, a large group of demonstrators had repeatedly disrupted a meeting of the Board of Regents to the extent that the board was unable to conduct its regular business. Although several arrests were made, the remaining demonstrators continued to heckle and disrupt the meeting. Rather than resorting to further arrests and direct physical confrontation, the regents decided to obtain a temporary restraining order and to recess the meeting and move it to a different location in accordance with the court order. University officials were posted at the door of the old meeting room in order to advise the press and the general public of the room change. Although the press and most members of the general public were permitted to enter the new meeting room and attend the meeting, the individuals involved in the disruptive activities were excluded.

The Court of Appeals, upon review, recognized at least implicitly that physical expulsion by a law enforcement officer is an acceptable means of removing persons who breach the peace at a public meeting. The court went on to conclude, however, that the 'recess and remove' strategy adopted by the Board of Regents was an acceptable alternative to such forcible expulsion:

There is nothing in the court's analysis in this case which suggests that this conclusion is inapplicable to the exclusion of an unauthorized individual from a closed session of a public body. Indeed, a review of the provisions of the Open Meetings Act suggests that the remedies described by the court in Regents of the University of Michigan are, if anything, even more appropriate in the context of an unauthorized intrusion into a closed session. While the fundamental purpose of the Open Meetings Act is to assure the right of citizens to attend ordinary open session meetings of public bodies, the closed session provisions of the Act clearly contemplate that a public body may exclude members of the general public from a lawfully closed session. The Act does not give the general public the right to attend a closed session, nor to disrupt a closed session by means of an unauthorized intrusion upon the public body's deliberations.

It is my opinion, therefore, that a public body may, if necessary, exclude an unauthorized individual who intrudes upon a closed session by either (1) having the individual forcibly removed by a law enforcement officer, or (2) by recessing and removing the closed session to a new location.

Your final question may be stated as follows:

The notice requirements of the Open Meetings Act are set forth in MCL 15.265; MSA 4.1800(15), which provides in pertinent part:

In Regents of the University of Michigan, the Court of Appeals discussed at some length the application of the notice provisions of MCL 15.265; MSA 4.1800(15), to a public meeting which had been briefly recessed and moved to a new location. After citing and quoting at length its provisions, the court stated:

The obvious purpose of the notice provisions contained in the Open Meetings Act is to assure that the members of the general public and the press are aware of the time and place of public meetings so that they are able to attend and participate. Such considerations are somewhat less compelling in the case of a closed session inasmuch as the press and the general public have no right to attend or to participate in closed sessions. Nevertheless, as the Court of Appeals recognized in Regents of the University of Michigan the provision of some form of reasonable notice is necessary in order to 'remain faithful to the spirit and purpose of the Open Meetings Act.' 97 Mich App, 540. Even though the press and the general public have no right to actually attend and participate at such closed sessions, nevertheless, the public does have an interest in knowing when and where the public body convenes in such a session. Any other interpretation of the Act would run counter to the mandate that the act be construed so as to favor openness. See, Wexford County Prosecutor v Pranger, 83 Mich App 197; 268 NW2d 344 (1978).

It is my opinion, in response to your final question, that a public body which recesses an open meeting and convenes in a separate location for a closed session within less than 36 hours, may do so without satisfying the 18-hour notice requirement of MCL 15.265(4); MSA 4.1800(15)(4), but must, nevetheless, take reasonable steps to inform the general public as to when and where the closed meeting will convene.

Frank J. Kelley

Attorney General