On March 10, Governor Gretchen Whitmer announced Michigan’s first two confirmed cases of COVID-19, the novel coronavirus, in Wayne and Oakland counties, and declared a state of emergency. According to Dr. Joneigh Khaldun, Michigan’s Chief Medical Executive, “It is very likely that we will see more cases, and that there will be community spread.” Since then, an additional ten cases have been reported statewide.
Michigan has now joined the overwhelming majority of states that have been impacted by COVID-19. Medical officials across the country are urging people to avoid social gatherings, a practice called “social distancing,” in order to slow the spread of the virus. One of the reasons social distancing is important is that many people who are infected with COVID-19 do not immediately exhibit symptoms. Therefore, officials believe, it’s best to limit the congregation of people to help stop the contagion. Case in point: On March 12, Governor Whitmer announced that all Michigan public schools will be shut down from March 16 until April 5 in order to help slow the spread of the virus.
In this environment, despite the financial costs and logistical inconveniences, businesses, associations, and governments have determined that the best way to protect public health is to delay or cancel events. But what about those who are legally mandated to do their business in public, such as public bodies subject to the Open Meetings Act in municipalities across Michigan? In light of the COVID-19 invading Michigan’s borders, and calls by public health officials for people to distance themselves from public settings, the Michigan legislature should act—now—to amend the Open Meetings Act to allow public bodies to conduct business in non-public settings without running afoul of the law.
Michigan’s Open Meeting Act
The Michigan Open Meetings Act is meant to enhance transparency. Generally, the Open Meetings Act requires that public bodies conduct meetings, make decisions, and engage in deliberations at meetings open to the public in places available to the general public.
The Michigan legislature should act immediately to provide public bodies the flexibility to conduct business pursuant to a framework that appropriately balances the desire for transparency with the urgent need to protect public health.
A Proposed Open Meetings Act Framework that Provides Transparency While Protecting Public Health
It is, of course, up to the legislature to craft precise language for any amendment to the Open Meetings Act statute that addresses the balancing act between transparency and health described above. In doing so, however, the legislature should consider the following guidelines as part of any framework. Specifically, an amendment to the Open Meetings Act to address the COVID-19 outbreak should allow for public meetings at which the public is not physically present if:
- Notice of the meeting is provided and the meeting agenda is published in advance. This will allow the public to know when a meeting is being held and what issues will be addressed. Once the agenda is published, no further items could be added unless an amended agenda is provided in advance of the meeting.
- The meeting is broadcast live. This will enable residents to observe the meeting in real-time, either through a local television station broadcast or Internet livestream. Alternatively (or in addition to broadcasting the meeting), the public could listen in via a phone call-in number.
- Residents are given an opportunity for public comment. Whether through email or other remote means of communication, the public must have a real-time means of commenting on and/or questioning the issues being discussed at the meeting.
- The clerk reads the comments/questions live during the meeting. This will allow the public body to consider the comments and ensure they are incorporated into the public record.
In crafting the appropriate framework, the legislature must also grapple with what may be the most thorny issue of all: What circumstances should trigger a public board’s ability to employ the alternative open meeting framework described above?
The legislature has a spectrum of options to consider in regards to a trigger, with subjective standards on one end and objective standards on the other. A subjective standard would be something along the lines of “in the event of an emergency,” which would leave the decision to the judgment of the public board. A more objective standard would allow for the alternative meeting rules to be employed to the extent a confirmed case of COVID-19 has been identified within the borders of the county in which the public board operates.
Finally, the legislature should provide public boards with guidance, even if not incorporated into statutory language, to help them serve their constituents while safeguarding public health. For example, the legislature could advise that non-critical meetings be rescheduled to a later date; non-critical agenda items be moved to a future meeting; and information that does not require governing body action (such as municipal staff updates) be distributed to the governing body and public in written form.
We are in uncharted waters. In times of crisis, strong and proactive leadership is required. When public health is at risk, we must listen to health experts and heed their call to engage in preventive measures such as social distancing. Since Michigan law requires close social interaction for meetings governed by the Open Meetings Act, it’s incumbent upon the Michigan legislature to take action to provide public bodies options to protect public health.
