Did Ludington violate the OMA?

November 11, 2012

LUDINGTON — On Friday, Mason County Press posted a story about Tom Rotta filing a lawsuit against the city of Ludington. Rotta has filed at least two other suits against the city (see the story here.)

One of those suits is a federal lawsuit alleging his civil rights were violated when the city placed a restraining order on him, preventing him from entering city hall. That suit will be tried in federal court in Grand Rapids.

The other was a circuit court case alleging a violation of Michigan’s Freedom of Information Act. That court was tried in the 51st Circuit Court here in Mason County. Rotta lost that case but said he is appealing.

In the latest case Rotta accuses the city of violating Michigan’s Open Meetings Act. Like the FOIA case, this one will also be tried in circuit court, as allowed in the statute.

In his complaint, Rotta accuses City Manager John Shay and the Ludington city council of making a nearly $95,000 non-emergent sewer repair decision via email and not during an open meeting.

Looking over the OMA, this does appear to be a violation of the act.

The Michigan Open Meetings Act 267 of 1976, Sec. 3.1 states: “All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be permitted to attend any meeting except as otherwise provided in this act. The right of a person to attend a meeting of a public body includes the right to tape-record, to videotape, to broadcast live on radio, and to telecast live on television the proceedings of a public body at a public meeting. The exercise of this right shall not be dependent upon the prior approval of the public body. However, a public body may establish reasonable rules and regulations in order to minimize the possibility of disrupting the meeting.”

According to the OMA Handbook, providing by the Michigan Attorney General’s office, “The OMA defines ‘decision’ to mean ‘a determination, action, vote or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy.’”

The handbook also specifically states: “email, texting or other forms of electronic communications among members of a board or commission during the course of an open meeting that constitutes deliberations toward decision-making or actual decisions violates the OMA, since it is in effect a ‘closed’ session… Moreover, the use of electronic communications for discussions or deliberations, which are not, at a minimum, able to be heard by the public in attendance at an open meeting are contrary to the OMA’s core purpose – the promotion of openness in government.

“Using email to distribute handouts, agenda items, statistical information or other such material during an open meeting should be permissible under the OMA, particularly when copies of that information are also made available to the public before or during the meeting.

However, Rotta is not alleging the violation took place during a meeting, but rather a meeting was held via email. This, according to the act is against the law. Sec. 3.2 states: “All decisions of a public body shall be made at a meeting open to the public.”

“The OMA requires that the deliberation and formulation of decisions effectuating public policy be conducted at open meetings. Voting by proxy effectively forecloses any involvement by the absent board member in the board’s public discussion and deliberations before the board votes on a matter effectuating public policy. Without explicit statutory authority, this practice is not allowed.”

To see the OMA and FOIA yourself, check it out here: OMA/FOIA

We have sent an email to City Manager John Shay asking for the city’s side of the story.

Legally Speaking: Consent to search

Betten Baker Ford

Subscribe to MCP via Email

Enter your email address to subscribe to this site and receive notifications of new posts by email.

Join 20,225 other subscribers