Recent Amendment to Michigan’s Open Meetings Act Allows Electronic Meetings of Public Bodies

Michigan’s Open Meetings Act (“OMA”) was officially amended this past Friday when Governor Whitmer signed SB 1108 (now Public Act 228 of 2020). The new law permits public bodies to conduct electronic meetings under certain circumstances and for a set period of time. The amendments to the OMA were prompted by a recent Michigan Supreme Court decision that effectively eliminated emergency executive orders issued by Governor Whitmer after April 30, 2020. Among the emergency orders was Executive Order No. 2020-154, which temporarily suspended certain requirements of the OMA and allowed public bodies to meet electronically during the COVID-19 pandemic. With the new amendments in place, public bodies should be sure to conduct electronic meetings—when permitted—in full compliance with the amended OMA requirements. Failure to do so could result in challenges to decisions made by public bodies.

Significantly, the amendments are retroactive to March 18, 2020. From March 18, 2020, through January 1, 2021, public bodies are permitted to meet by electronic means under any circumstances, if decisions are rendered at electronic meetings in compliance with the Act’s requirements. Beginning January 1, 2021, a public body may meet electronically only under certain circumstances, including military duty, a medical condition affecting a member of the public body, or a statewide or local state of emergency or state of disaster declared pursuant to law. If a public body relies on a local state of emergency or local state of disaster, electronic meetings are permitted only when: (1) a member resides of the public body in the affected area; or (2) the public body holds its meeting in the affected area. After December 31, 2021, a member of a public body will be permitted to participate electronically only when absent due to military duty.

The changes make the OMA similar to electronic meeting requirements in previously-issued executive orders, and include some new requirements:

• After January 1, 2021, for a member of a public body attending a meeting by electronic means, that member must make a public announcement at the beginning of the meeting (to be included in meeting minutes) indicating that the member is participating by electronic means. If a member participating by electronic means is unable to attend for a purpose other than for military duty, the announcement must further identify the member’s specific physical location by stating the county, city, township, or village and state from which the member is participating electronically.
• Electronic meetings must be conducted in a manner that permits two-way communication so members of the public body can hear and be heard by other members of the public body and so that public participants can hear members of the public body and can be heard by members of the public body and other participants during public comment period.
• Public bodies may use technology to facilitate typed public comments during the meeting submitted by members of the public participating in the meeting that may be read to or shared with members of the public body and other participants to satisfy the requirement that members of the public be heard by others during the electronic meeting and the requirement that members of the public be permitted to address the electronic meeting.
• A physical place is not required for electronic meetings. Members of public bodies and the public participating electronically in a meeting that occurs in a physical place are to be considered present and in attendance at the meeting for all purposes. However, this does not apply to a meeting that accommodates members absent due to military duty or medical condition—only those members absent for those reasons may participate remotely. Other members must be physically present.
• If the public body has an official internet presence that includes monthly or more frequent updates of public meeting agendas or minutes, then, at least 18 hours beforehand, notice of an electronic meeting must be made on a publicly accessible portion of the public body’s website. Such notice must be on the homepage or separate webpage dedicated to public notices and contain specific information including:
  • Why the public body is meeting electronically;
  • How members of the public may participate in the electronic meeting;
  • How members of the public may contact members of the public body to provide input or ask questions related to any business that will come before the public body at the electronic meeting; and
  • How persons with disabilities may participate in the electronic meeting.
• If an agenda exists for an electronic meeting by a public body that directly or indirectly maintains an official internet presence that includes monthly or more frequent updates of public meeting agendas or minutes, the agenda must be posted at least two hours before the electronic meeting begins.
• Public bodies cannot, as a condition for participating in an electronic meeting, require a person to register or otherwise provide their name or other information or fulfill any other condition precedent to attend, other than mechanisms established and required by the public body necessary to permit the person to participate in a public comment period of the meeting.

For more information, please contact Stephen Estey at 248-203-0538, or your regular Dykema contact.