By Mark W. McInerney
In October 2020, and then again in December 2020, the Michigan Legislature amended the Open Meetings Act to expressly permit remote meetings of public bodies while the COVID-19 pandemic continued. The initial amendment became necessary after the Supreme Court limited the Governor's ability to issue executive orders, including orders that permitted remote public meetings so long as certain procedures were followed. While the Legislature disagreed with some of the Governor's orders, it agreed that public meetings during the pandemic were not a good idea. Thus, Public Act 228 of 2020, effective October 16, 2020, expressly permitted, until December 31, 2020, remote public meetings under "any circumstances," subject to procedural requirements that mirrored those established by the Governor in her executive orders. With the year-end spike in COVID-19 cases, Public Act 254 of 2020 was passed effective December 22, 2020, extending the "any circumstances" basis for remote public meetings until March 31, 2021. With the pandemic still with us, it is quite foreseeable that one further extension of this rule, perhaps until June 30, 2021, will become necessary.
Public Act 228, in addition to the short-term extension of remote meetings under "any circumstances," also contained several new provisions that escaped the attention of many observers. Public Act 254 continued those provisions in place.
Beginning with the expiration of the "any circumstances" basis for remote meetings currently April 1, 2021 remote meetings of public bodies will no longer be permitted. In addition, remote participation in a meeting of a public body by an individual member of the public body will be permitted in only three situations: 1) when the member is in military service; 2) when the member has a "medical condition," defined as "an illness, injury, disability or other health-related condition" (and thus not limited to COVID-related conditions); or 3) or in the case of a "statewide or local state of emergency or state of disaster" "that would risk the personal health or safety or members of the public or the public body if the meeting were held in person."
Beginning on January 1, 2022, the latter two reasons will no longer suffice; at that point, remote participation will be permitted only by members of the public body who are in military service.
Based upon an analogous 1985 Court of Appeals decision and a 1995 Attorney General's Opinion, it has long been the consensus view that members of public bodies could participate in public meetings remotely, so long as voice equipment were in place to allow the public to hear the absent member's comments and votes. There have been legislative efforts over the last dozen years to forbid such remote participation, none of which succeeded. Those interested in blocking remote participation have now succeeded in including a ban on remote participation in Public Acts 228 and 254, ironically at a time when members of the public had become accustomed to remote meetings as a result of the pandemic.
Public bodies should therefore be aware of the limited circumstances under which remote participation will be permitted between April 1 and December 31, 2021, and the almost total ban on such participation scheduled to be effective on January 1, 2022.
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Mark McInerney, member of Clark Hill's Education and Municipal Law Group.
