The following opinion is presented on

BOARDS AND COMMISSIONS:

CITIES:

FREEDOM OF INFORMATION ACT:

OPEN MEETINGS ACT:

PUBLIC BODY:

Application of Freedom of Information Act to city retirement board

Application of Open Meetings Act to city retirement board

The board of trustees of a retirement system established and administered by a home rule city charter is a "public body" subject to the Open Meetings Act and the Freedom of Information Act.

You have asked whether a board of trustees of a municipal retirement system established by a home rule city charter is a "public body" under the Open Meetings Act and the Freedom of Information Act.

The Open Meetings Act (OMA), 1976 PA 267, MCL 15.261 et seq, requires a public body to open all of its meetings to the public, and to make all of its decisions in meetings open to the public, subject to limited exceptions. OAG, 1981-1982, No 6053, p 616 (April 13, 1982). Its purpose is "to promote a new era in governmental accountability" and to foster "openness in government as a means of promoting responsible decision making." Booth Newspaper, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 222-223; 507 NW2d 422 (1993). The Michigan Supreme Court has said that the act should be broadly interpreted and its exemptions strictly construed. Id. at 223. The OMA defines the term "[p]ublic body" to include "any 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. . . ." OMA, section 2(a). (Emphasis added.) Only bodies empowered by law to exercise governmental or proprietary authority are included within this definition. OAG, 1997-1998, No 6935, pp 18, 19 (April 2, 1997). The Michigan Court of Appeals has acknowledged that a township board and township planning commission are "public bodies" under the OMA. Ryant v Cleveland Twp, 239 Mich App 430, 434 (2000). The Attorney General has opined that a county concealed weapons licensing board is a "public body" under the OMA. OAG, 2001-2002, No 7073, p ___ (January 23, 2001). A public university's board of regents is a "public body" under the OMA. Booth Newspapers Inc, supra, at 225.

The Freedom of Information Act (FOIA), 1976 PA 442, MCL 15.231 et seq, entitles members of the public to inspect and copy or receive copies of public records prepared, owned, used, in the possession of, or retained by, a public body in the performance of an official function. The FOIA defines the term "public body" to include "a city . . . or a board, department, commission, council or agency thereof," and "[a]ny . . . body which is created by state or local authority or which is primarily funded by or through state or local authority." Section 2(d)(iii) and (iv).

The electors of a home rule city may, by charter provision, establish a retirement system for city employees to receive employer and employee contributions, and to administer benefits and other retirement plan provisions. Bowler v City Controller, 228 Mich 434, 437-439; 200 NW 258 (1924); Division 26 v Detroit, 330 Mich 195, 210-211; 47 NW2d 70 (1951); Detroit Police Officers Ass'n v Detroit, 391 Mich 44, 66; 214 NW2d 803 (1974). A home rule city may also establish a retirement system for its employees by ordinance of its legislative body. Hubbard v Dearborn Retirement System Bd of Trustees, 319 Mich 395, 399; 29 NW2d 779 (1947); OAG, 1943-1944, No 24444, p 73 (August 27, 1942).

While the specific duties of the board of trustees of a municipal retirement system established by charter would be as set forth in its charter, Michigan cases have discussed the types of governmental duties performed by these boards. First, these boards interpret city charter provisions governing pensions provided for a municipality's officers and employees. Lansing Fire Fighters Assn v Lansing Policemen’s & Firemen’s Retirement System Bd of Trustees, 90 Mich App 441, 445; 282 NW2d 346 (1979). Second, these boards make important decisions affecting city government, such as computing the city's contribution liability to the fund, and how to invest the pension funds. How the pension funds are invested in turn affects both the amount of city contributions and the amount of city employee contributions. Detroit v Michigan Council 25, AFSCME, 118 Mich App 211, 218-219; 324 NW2d 578 (1982).

In light of these authorities, it is apparent that when a board of trustees administers a public pension system, it is carrying out a governmental responsibility. Therefore, these boards meet the definition of "public body" in section 2 (a) of the OMA as a "board . . . empowered by . . . charter . . . to exercise governmental . . . authority or perform a governmental . . . function." Since the board described in your question is a city board created by city charter, it likewise constitutes a "public body" as a "body which is created by . . . local authority or which is primarily funded by or through . . . local authority" under section 2(d)(iii) and (iv) of the FOIA.

It is my opinion, therefore, that a board of trustees of a municipal retirement system established by a home rule city charter is a "public body" under the Open Meetings Act and the Freedom of Information Act.