Executive Order Regarding Public Meetings in Light of COVID-19

On March 18, 2020, Michigan Governor Gretchen Whitmer issued Executive Order No. 2020-15, which temporarily suspends rules and procedures for all public bodies conducting meetings and hearings in a physical place in accordance with the Open Meetings Act, MCL § 15.261 et seq. (“OMA”).

In lieu of holding a meeting or hearing in a physical place or requiring the physical presence of one or more members of the public body, the Executive Order provides the following requirements for a public body to conduct its meeting electronically:

1. The electronically held public meeting must permit two-way communication, so that members can hear and be heard, and public participants can hear and be heard during the public comment period.
2. Notices of electronically held meetings must be posted on the public body’s website, with information related to the following procedures:

• • How persons may participate in the meeting electronically, including a telephone number, internet address, or both;
  • How persons may contact members of the public body to provide input or ask questions on any business that will come before the public body at the meeting; and
  • How persons with disabilities may participate in the meeting.

3. Participants must be permitted to address the public body, as well as tape-record, videotape, broadcast live on radio, and telecast live on television the proceedings of the public meeting.
4. A public body cannot require that persons electronically register or otherwise provide his/her name or other information in order to participate in a public body’s electronically held meeting.
5. All votes taken during a public body’s meeting held electronically are recommended to be taken by roll call to avoid any questions about how each member of the public body votes.
6. The public body is encouraged to make available to the general public through the public body’s website homepage an agenda and other materials relating to the meeting.
7. Members of the general public otherwise participating in a meeting of a public body held electronically may be excluded from participation in a closed session of the public body held electronically during that meeting if the closed session is convened and held in compliance with the requirements of the OMA applicable to a closed session.

The Executive Order reminds that any discussions or deliberations by a public body at an open meeting that cannot be heard by the general public are contrary to the purposes of the OMA. Accordingly, public body members must avoid using email, texting, instant messaging, and other such electronic forms of communication to make a decision or deliberate toward a decision, in addition to avoiding “round-the-horn” decision-making in a manner not accessible to the public at an open meeting.

The Executive Order further suspends the requirement in the Revised School Code that a school district board of education are required to hold meetings at least once a month.

The above provisions are in place until April 15, 2020 at 11:59 p.m.

If a public body intends to hold its meeting electronically, it must comply with the above requirements set forth in the Governor’s Executive Order. Failure to comply with these requirements may result in a violation of the Open Meetings Act and any decisions made at such meeting will be invalid. Should you wish to discuss any of the above, please do not hesitate to contact your Keller Thoma attorney.