Government and Law

Appeals court affirms public body's authority to self-cure Open Meetings Act violations

August 30, 2018
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On March 13, the Michigan Court of Appeals issued a published opinion in Lockwood, et al. v. Township of Ellington, et al., affirming the authority of public bodies to ratify, or not ratify, decisions made in violation of the Open Meetings Act at their discretion.

The case arose out of a Nov. 1, 2016, meeting of the Ellington Township Board. It was uncontested that no notice of the meeting was posted at the Township Hall as required under the OMA. During the meeting, the board appointed and verified the appointments of two individuals to the Planning Commission.

Shortly thereafter, a new board took office, and at a special board meeting Nov. 22, 2016, the new board concluded that the Nov. 1 meeting was held in violation of the OMA and therefore the events of that meeting, including the appointments to the Planning Commission, would be added to the December meeting agenda. At the December meeting, the new board chose not to ratify the Planning Commission appointments and instead resolved to accept applications for the vacancies which were eventually filled by two different individuals.

The ousted appointees filed a lawsuit alleging the OMA does not vest a public body with the power of invalidation. Rather, according to the plaintiffs, the OMA provides only that an action may be commenced in the circuit court to challenge the validity of a decision of a public body made in violation of the OMA. In response, the township argued that nothing in the OMA limits a public body’s abilities to re-enact, or not re-enact, an illegal decision.

The trial court sided with the ousted appointees and determined the incoming board did not have the authority to remove the previously appointed Planning Commission members even though their appointments took place at an illegal meeting. On appeal, however, the Court of Appeals reversed and vacated the trial court’s judgment.

The Court of Appeals held that: “ … the board was permitted by the OMA to correct the deficiency in the procedure by ratifying the decisions made during the Nov. 1, 2016, meeting, [however,] there is nothing in the OMA to suggest that it was required to ratify the decisions made during that meeting.”

Therefore, the court continued, “ … if an action taken at a meeting held in violation of the OMA is not ratified, it is not valid, and has no force or effect.” The court concluded that the township was authorized to self-correct any procedural violations on its own without first being sued, and that because the appointments made at the Nov. 1 board meeting were violative of the OMA and never ratified, they had no force or effect.

The Lockwood case clarifies that any municipal board actions taken in violation of the OMA are null and void unless the board re-enacts or ratifies those actions, and that when a public body discovers a procedural deficiency, it can self-correct the deficiency rather than wait to be sued at the taxpayers’ expense.