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
OPEN MEETINGS ACT:
Meetings of advisory committees
The Open Meetings Act was not violated when an advisory committee formed by the Ionia Board of Education to study eligibility standards for participation in athletics excluded the public from a committee meeting.
Opinion No. 6935
April 2, 1997
Honorable Joanne G. Emmons
State Senator
The Capitol
Lansing, Michigan
Honorable Terry Geiger
State Representative
The Capitol
Lansing, Michigan
Mr. Raymond P. Voet
Ionia County Prosecuting Attorney
Ionia County Courthouse
Ionia, Michigan
Each of you has asked if the Open Meetings Act (OMA), 1976 PA 267, MCL 15.261 et seq; MSA 4.1800(11) et seq, was violated when a committee formed by the Ionia Board of Education to study eligibility standards for participation in athletics excluded the public from a committee meeting.
Information submitted contemporaneously with your requests indicates that at an August 5, 1996, meeting, the Board of Education of the Ionia Public Schools created an advisory committee to study academic standards and athletic participation in the public school setting. The committee consisted of two volunteer members of the board of education, along with school district staff, parents and students. The committee's essential charge was to gather information, review existing school district policy and make recommendations to the board of education regarding eligibility standards for athletic participation. The committee was not given authority to alter existing district policy or to create new policy. Rather, decisions regarding the school district policy would be made by the board of education in an open meeting after the board evaluated the committee's recommendations. At its initial meeting on August 21, 1996, the committee barred a local newspaper reporter from attending the meeting.
Subject to limited exceptions, the OMA requires a public body to hold meetings that are open to the public. OAG, 1981-1982, No 6053, p 616 (April 13, 1982). Section 2(a) of the OMA defines "[p]ublic body" as:
[A]ny state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee thereof performing an essential public purpose and function pursuant to the lease agreement.
(emphasis added).
Although the definition of public body is broad, it is limited to bodies that are empowered by law to exercise governmental or proprietary authority. Prior opinions of this office have consistently concluded that the definition of public body does not include advisory boards or committees of a public body that do not exercise governmental or proprietary authority. OAG, 1993-1994, No 6799, pp 147, 148 (May 18, 1994); OAG, 1981-1982, No 6053, p 616, supra; OAG, 1979-1980, No 5505, pp 221, 222 (July 3, 1979); OAG, 1977-1978, No 5183, pp 21, 40 (March 8, 1977).
OAG, 1977-1978, No 5183, supra, at 40, concluded that:
Based on the wording of the enacted version of the [Open Meetings] Act and the intent of the legislature as indicated by the changes from the original form, it is my opinion that the Act does not apply to committees and subcommittees of public bodies which are merely advisory or only capable of making "recommendations concerning the exercise of governmental authority". These bodies are not legally capable of rendering a "final decision". In other words, a subcommittee which can only make recommendations to the public body for final decision is not required to hold its committee meetings in public hearings.
This opinion was based, in part, upon an analysis of the definition of public body in section 2(a) of the OMA, and that definition has not been amended since the issuance of the 1977 opinion.
The decision of the Michigan Supreme Court in Booth Newspapers v University of Michigan Board of Regents, 444 Mich 211, 507 NW2d 422 (1993), does not require a different conclusion. In Booth, the Supreme Court held that the University of Michigan Board of Regents' process for selection of a new university president violated the OMA. The Board of Regents appointed all of its members to the Presidential Selection Committee, appointed one of the regents chairman of that committee and engaged in a process of eliminating potential candidates from consideration for the position. The committee and its chairman ultimately reduced the number of candidates from 250 to 12 without having conducted any public meetings. Subquorum groups of board members then met with each of the remaining candidates to discuss the position. Following a number of closed-session meetings of the board, the field was narrowed to five candidates. A nominating committee was then formed and the nominating committee narrowed the field to one candidate. That candidate was then nominated to the Board of Regents and, after allowing for a public interview, the board selected the recommended candidate for the position in an open session.
In holding that the process violated the OMA, the Supreme Court ruled that the selection of a university president was an exercise of governmental authority. The Court also ruled that both the chairman of the Presidential Selection Committee and the committee itself were public bodies as that term is defined in the OMA. Booth, supra, 444 Mich at 226. The Court further held that the selection committee's reduction of the field of potential candidates constituted a series of "decisions" made by a public body that should have been made in open session. Booth, supra, 444 Mich at 227-229. Finally, the Court held that the meetings between prospective candidates and members of the board were, in reality, interviews that should have been conducted in open session. Booth, supra, 444 Mich at 231.1
The Supreme Court's decision in Booth, supra, is not applicable here because the Board of Education of the Ionia Public Schools never delegated any decision-making authority to the committee. It simply created the committee to study the issue and to make recommendations. Thus, unlike Booth, the committee created by the Ionia Board of Education is purely advisory in nature. Since the committee is only capable of making "recommendations concerning the exercise of governmental authority," its meetings need not be open to the public. OAG, 1977-1978, No 5183, supra, at 40.
It is my opinion, therefore, that the Open Meetings Act was not violated when an advisory committee formed by the Ionia Board of Education to study eligibility standards for participation in athletics excluded the public from a committee meeting.
FRANK J. KELLEY
Attorney General
1 Subsequently, in 1996 PA 464, the Legislature amended sections 7 and 8 of the OMA and added section 13(a) to that act. These provisions deal specifically with selecting presidents of institutions of higher education.