STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6499

February 24, 1988

OPEN MEETINGS:

Regulation of electronic recording of tenure hearing open to public

SCHOOLS AND SCHOOL DISTRICTS:

Regulation of televising or filming by electronic media of teacher tenure hearing open to the public

A board of education may establish reasonable regulations governing the televising or filming by the electronic media of a teacher tenure hearing open to the public in order to minimize any disruption to the hearing, but it may not prohibit such coverage.

Honorable D. J. Jacobetti

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on a question which may be stated as follows:

Boards of education must conduct their meetings in accordance with the School Code of 1976, 1976 PA 451, Sec. 1201, MCL 380.1201; MSA 15.41201, and the Open Meetings Act, 1976 PA 267, MCL 15.261 et seq; MSA 4.1800(11) et seq. Under Act 267, Secs. 3 and 8, meetings of public bodies are to be open to the public unless they fall within a specific exception.

The Open Meetings Act defines a '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.' Act 267, Sec. 2(b). It is understood that in the situation giving rise to your inquiry, the board provided notice of the tenure hearing as a public meeting.

Letter opinion of the Attorney General (Senator Joseph M. Snyder, February 22, 1978) states that:

Tenure hearings may be conducted in closed session at the request of the teacher. The Teacher Tenure Act, 1937 Ex Sess PA 4, MCL 38.71 et seq; MSA 15.1971 et seq, provides that '[t]he hearing shall be public or private at the option of the teacher affected.' Act 4, art IV, Sec. 4. Similarly, the Open Meetings Act permits 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, if the named person requests a closed hearing.' Act 267, Sec. 8(a). As both statutes allow a concerned party to request and receive a closed hearing, it has long been recognized that '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 . . ..' OAG, 1977-1978, No 5183, p 21, 31-32 (March 8, 1977). See Royal Oak School Dist v Schulman, 68 Mich App 589, 593, n 1; 243 NW2d 673 (1976).

Thus, a teacher who had not previously requested the hearing to be closed--as was apparently the case in this instance--upon learning of the presence of cameras, could block the televising or filming of the hearing simply by requesting that the meeting be closed to the public. If the request for a closed hearing is later rescinded, however, the Open Meetings Act provides that the proceeding will thereafter be open to the public. Act 267, Sec. 8(a).

While the board must meet in open or closed session in accordance with the teacher's request, it has no statutory authority to exclude the electronic media from covering a hearing which is open to the public. On the contrary, in a 1986 amendment to Act 267, Sec. 3, the Legislature expressly provided that:

In assuring that a person's right to tape or broadcast a public meeting 'shall not be dependent upon the prior approval of the public body,' the clear purpose of the amendment is to forbid a public body from barring access to a public meeting by the electronic media.

OAG, 1985-1986, No 6353, p 255, 257 (April 11, 1986), states:

It is my opinion, therefore, that a board of education may establish reasonable regulations governing the televising or filming by the electronic media of a teacher tenure hearing open to the public in order to minimize any disruption to the hearing but it may not prohibit such coverage.

Frank J. Kelley

Attorney General