Monday, December 22, 2008

Constructive Quorum in Michigan

I've been to some, not very many, meetings
of public bodies here in Iron County, Michigan.

It always seemed to me that the members of
the various boards and councils got through
their business rather quickly, and often a
motion was brought, and carried on voice
vote, with infrequent dissent.

Aha, I thought, they've discussed their issues
and hammered them out beforehand....that
ought to be illegal under the Open Meetings
Act.

My recent research found that it is. It is
called a constructive quorum, where members
of the controlling organ of a public body
discuss an issue serially in order to, they
seem to believe, thwart the intent of the
Open Meetings Act without actually violating
the law. Well they're simply wrong. It is
a violation.

There's the case of Marquette City Attorney
Bonnie L. Hoff in which the following classic
text is provided in the unpublished opinion:

"[I]t is clear from the various exhibits
submitted by the parties . . . , specific-
ally including the Affidavits of
Commissioners Spoelstra and Kensington,
that the same type of Open Meetings Act
violation found by the Court in Booth
Newspapers v University of Michigan
Board of Regents, may well have
occurred during the private “get
togethers” between various subgroups
of the Marquette City Commission that
each involved, admittedly, less than
a quorum of the Board. Such a
conclusion . . . is supported by
the fact that the Board terminated
the contact of one of the two highest
City employees, Ms. Hoff, the City
Attorney, at the January 31, 2005,
city commission meeting without a
whit of discussion and with no stated
reason. Even the most naïve and
trusting observer would conclude that
something more than an exchange of
pleasantries, which involved the
topic of Attorney Hoff’s termination,
took place at the non-public
subgroup meetings. [Emphasis in
original.]"


"Similarly, in Booth Newspapers, Inc
v Univ of Mich Board of Regents, the
defendant board established subquorum
committees that engaged in telephone
calls and small group meetings. This
Court found it significant that the
acknowledged purpose of these subquorum
committees was to engage in the same
intercommunications that could only
have been achieved in a full meeting
of the board. According to this Court,
“The subquorum groups were utilized
or designed to avoid the OMA, and
therefore, they constituted a
constructive quorum[.]” Therefore,
this Court held that, because the
board “deliberately divided itself
into subquorum groups to deliberate
on public policy, in direct
circumvention of the OMA’s objective
of promoting openness and
accountability in government,” the
OMA applied."

By reading the entire opinion and the
footnotes one discovers that this
problem has been repeatedly been before
the courts, and that in most cases the
courts have held that the subquorum
meetings were illegal.

The problem here in Iron County is that
not only do we not have enough of the
public involved in the meetings, but also
that our public is mostly apathetic when
it comes to letting illegal conduct slide.

Posted by Bill Vajk
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1 comment:

Bill Vajk said...

This article was reposted over in a
Yahoo group called IronCountyWatch
with a reply from an anonymous
individual who generally takes some
sort of exception to whatever it is
that I wrote. Of course he or she
never comes to this blog to comment
here directly. I think that
Shadowman's comment deserves an
airing and a direct reply here.

"Your assumption that this is
happening with the County Board and
the City of Iron River is quite
weak at best unless you know in
fact that this is actually going
on."

Dear Shadowman:

The only opinion regarding what is
happening in Iron County in these
regards comes from your posting.
But it sounds a lot like I touched
a sore spot that elicited your
response.

I hasten to point out that
violation of state laws by our
local governments is quite common.
The apathy I mentioned in the
article on constructive quorums
is responsible for permitting local
governments to get away with it.

That default conduct is coming to
an end very soon. Stay tuned.

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