Michigan Attorney General Dana Nessel released a new opinion last Friday addressing open meeting requirements and attendance accommodations.
“It is my opinion, therefore, that the Americans with Disabilities Act and Rehabilitation Act require state and local boards and commissions to provide reasonable accommodations, which could include an option to participate virtually, to qualified individuals with a disability who request an accommodation in order to fully participate as a board or commission member or as a member of the general public in meetings that are required by the Open Meetings Act to be held in a place available to the general public,” the opinion’s conclusion states.
Last month, Sen. Jeff Irwin and Sen. Wayne Schmidt requested an opinion on how Michigan’s Open Meetings Act (OMA) intersects with federal law when a person with a disability either serves on a body subject to the OMA or desires to fully participate in the meetings of such a body and requests an accommodation for their disability.
Their request stated, “[t]his is a matter of great urgency and importance as the allowance of local governments, as well as their boards and commissions, to meet virtually in response to the COVID-19 pandemic ended on January 1, 2022...Michiganians with disabilities and specific health conditions shouldn't have to risk their wellbeing to contribute to civic life in their communities.”
The opinion analyzes both the OMA and federal laws that govern access to public meetings.
“Historically, the kinds of modifications that have been requested have addressed physical or communication barriers, which have been remedied by disabled ramps, closed captioning, and the like. It is crucial that efforts aimed at removing those types of barriers continue. But medical conditions that make physical presence dangerous or impossible highlight a different but equally important need, and physical-presence requirements such as those of the OMA present an equally troubling barrier—one that potentially excludes the disabled as effectively as the lack of handicapped accessible parking or a wheelchair ramp... Determining what reasonable modifications might remedy such a barrier is, also, a heavily fact-dependent inquiry that must be determined on a case-by-case basis, considering the nature, location, and resources of a particular board or commission. (Some municipalities might have IT challenges, for example.) But because our boards and commissions already must, under the OMA, provide remote access and allow full participation for a member of the military, and because many of these boards and commissions have successfully gone wholly or partially virtual during the COVID-19 pandemic, it seems unlikely that a request for a hybrid approach of an in-person meeting and telephonic access or a virtual platform would result in an undue administrative or financial burden or constitute a fundamental alteration of a board’s or commission’s meetings," the analysis found.
“While this opinion will only be binding for state boards, it is my hope that local boards will use this guidance and ensure fair access to public meetings for those who require appropriate accommodations as we continue to navigate our way through the pandemic,” Nessel said. “Government participation should include everyone in our state who wants to serve.”
The full opinion, No. 7318, is now available on the Department of Attorney General’s website at www.michigan. gov/ag.
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