Michigan Open Meetings Act Compliance: (Nearly) Back to Business as Usual

As of today, March 31, 2021, no longer may public bodies take advantage of the “any reason” remote meeting provisions of the Open Meetings Act. When the Legislature extended the circumstances under which public bodies could meet remotely, it provided for limited circumstances after the “any reason” provision sunsets. Specifically, Public Act 254 of 2020 provided that:

• “Before March 31, 2021,” public body meetings could be held “in whole or in part, electronically by telephonic or video conferencing” under “any circumstances,” so long as certain conditions were met. MCL 15.263a(1)(a).
• From March 31, 2021, until December 31, 2021, public body meetings could be held “in whole or in part, electronically by telephonic or video conferencing” only if a member of the public body will be absent due to: (1) military duty; (2) a medical condition; or (3) a “statewide or local state of emergency or state of disaster declared pursuant to law or charter or local ordinance by the governor or a local official, governing body, or chief administrative officer that would risk the personal health or safety of members of the public or the public body if the meeting were held in person.” MCL 15.263(2); 15.263a(1)(b).

With the Legislature’s prior extension of the “any reason” remote meeting period set to lapse today, and with no further legislative extension in sight, local governments have widely begun declaring a “local state of emergency” so that public bodies may be able to meet remotely. Many counties have already declared states of emergency with more expected in the coming days, particularly in areas experiencing high levels of COVID-19 cases.

So what does this mean for public bodies that wish to continue meeting remotely? It depends on where they are located.

Public bodies meeting in localities where a “local state of emergency or state of disaster” has been declared can, for the most part, continue to meet remotely until either December 31, 2021, or the state of emergency is lifted—whichever comes first. MCL 15.263a(1)(c). But now, the purpose of holding the meeting remotely is more important. No longer can the meeting be held remotely under “any circumstances.” Instead, a remote meeting can be held “due to a local state of emergency or state of disaster” only “(i) To permit the electronic attendance of a member of the public body who resides in the affected area;” or “(ii) To permit the electronic meeting of a public body that usually holds its meetings in the affected area.” MCL 15.263a(1)(b). These public bodies must also continue to comply with notice and accessibility requirements that apply to remote meetings under the Open Meetings Act.

For public bodies that meet in areas where no local state of emergency or state of disaster is in effect, it is back to business as usual (or nearly). PA 254’s requirements that public bodies adhere to the Centers for Disease Control’s social distancing measures and adopt heightened facility cleaning and disinfection standards to limit COVID-19 exposure applied only to meetings held before April 1, 2021. Although those prior requirements continue to be best practices, they are no longer mandated by law. That said, public bodies must still continue to comply with applicable state guidance and epidemic orders, as well as with other requirements set forth in the Open Meetings Act, including the required procedures by which the absent members may participate in meetings. As the State’s most recent FAQs interpreting MDHHS and MIOSHA guidance explains, “up to 25 board members may gather for a meeting,” and “[t]he public may also attend the meeting subject to all applicable masking and distancing requirements. For in-person attendance to be permitted beyond 25 persons, the event must be designed to ensure that persons not part of the same group maintain 6 feet of distance from one another to the fullest extent possible.”

For more information, please contact Jason Hanselman (517-374-9181 or jhanselman@dykema.com), Courtney Kissel (248-203-0743 or ckissel@dykema.com), Kyle Asher (517-374-9151 or kasher@dykema.com), or your regular Dykema contact.

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