Michigan Advisory Opinions September 23, 1980: AGO 5788 (September 23, 1980)

AGO 5788.

You have asked for my opinion concerning a public body conducting meetings in closed session for purposes not mentioned in section 8 of the Open Meetings Act, 1976 PA 267; MCLA 15.268; MSA 4.1800(18). It appears that an eight-person public body held a meeting closed to the public to discuss two candidates for a vacancy in a public office to be appointed by the public body. Initially, two subcommittees composed of two members of the public body were appointed by the public body to interview one candidate each for the position. When the interviews were completed, all eight members of the public body met in one location in a room that had a divider which could be drawn across the room to make two rooms. The public body then divided itself into two four-person committees and met in the two rooms in the same building. One subcommittee member of each of the two interviewing subcommittees was part of each of the four-person committees. Following the discussion of the candidate interviews with the particular four-person group, the two interviewing subcommittee members in room 'A' then went to room 'B' and the two interviewing subcommittee members in room 'B' went to room 'A' where the discussion of the two candidates was continued and a consensus on the candidate was reached. Thereafter, a public meeting was held to approve the appointment.

Based upon the above factual situation, you have requested my opinion on two questions which may be phrased as follows:

1. May a public body avoid the requirements of the Open Meetings Act by dividing itself into two or more committees of less than quorum to collectively deliberate toward the resolution of public business which does not fall within the exemptions of section 8 of the Open Meetings Act?

2. What requirements exist with respect to reporting to the entire public body the deliberations and decisions of the committee or subcommittees?

In OAG, 1977-1978, No 5183, (Part II, No 25), p 40 (March 8, 1977), the question of whether committees and subcommittees having less than quorum of a public body were exempt from the provisions of the Open Meetings Act, 1976 PA 267; MCLA 15.261 et seq; MSA 4.1800(11) et seq was addressed and the opinion concluded:

'. . . Based on the wording of the enacted version of the Act and the intent of the Legislature as indicated by the changes from the original form, it is my opinion that the Act does not apply to committees and subcommittees of the public bodies which are merely advisory or only capable of making 'recommendations concerning the exercise of governmental authority.' These bodies are not legally capable of rendering a 'final decision'. In other words, a subcommittee which can only make recommendations to the public body for final decision is not required to hold its committee meetings in public hearings. I do believe, however, that where such subcommittee contains the entire body of the 'public body' which it serves, it would be a violation of the Act to allow such subcommittees to meet in the closed session. The probable result of such meeting would be the presentation to the public meeting of a fait accompli and this is to be avoided. Members of the public must be given the opportunity to be present so that they may observe the manner in which public bodies transact public business. Haven v City of Troy, supra, [39 Mich App 219; 197 NW2d 496 (1972)], and Alder v City Council of Culver City, 184 Cal App 2d 763; 7 Cal Rptr 805 (1960).' [Emphasis added.]

The rationale of that opinion applies to the factual situation under consideration. While a committee or subcommittee of a public body which constitutes less than quorum of the public body, and is purely advisory in nature, is not subject to the Open Meetings Act, supra, a a public body which divides itself into subcommittees of less than quorum to collectively deliberate towards the resolution of public business, is in fact, acting as a 'public body'. A public body may not avoid violating the Act by clothing itself as a sham advisory committee or subcommittee of less than a quorum. In Jones v Tanzler, 238 So 2d 91, 92-93 (Fla, 1970), the Florida Supreme Court stated:

'One purpose of the Sunshine Law was to maintain the faith of the public in governmental agencies. Regardless of their intentions, these specified boards or commissions, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations where decisions affecting the public are being made.

'. . . It is elementary that the officials cannot do indirectly what they are prevented from doing directly.'

In State ex rel Lynch v Conta, 71 Wis 2d 662; 239 NW2d 313, 331 (1976), the Wisconsin Supreme Court considered whether a private conference meeting of less than a quorum of the members of the public body was, in reality, a meeting of the public body so as to violate the Open Meetings Act, and underscored the possible evasions of the Open Meetings Act:

'. . . It is certainly possible that the appearance of a quorum could be avoided by separate meetings of two or more groups each less than quorum size, who agree through mutual representatives to act and vote uniformly, or by a decision by a group of less than quorum size which has the tacit agreement in acquiesance to other members sufficient to reach a quorum. Such elaborate arrangements, if factually discovered, are an available target for the prosecutor under the simple quorum rule.' [Emphasis added.]

The Michigan Court of Appeals, in Arnold Transit Co, et al v The City of Mackinac Island, ---- Mich App ----; ---- NW2d ---- (decided August 11, 1980), made a similar observation as to the potential for evasion of the Open Meetings Act, supra, where public officials attempted to justify a meeting of a public body by calling it a meeting of a 'committee of committees.'

The Court noted that:

'. . . To permit this, however, would make it too easy for a public body to avoid the act by conveniently labelling its meetings 'committee of committees'.'

Factual situations similar to the one posed in your inquiry have been held to be a violation of the Open Meetings Act. OAG, No 5183, supra, (Part II, No 8), p 32, concluded that phone call conference meetings are prohibited because the purpose of the Act is to provide members of the public the opportunity to be present so that they can observe the manner in which the public bodies transact business. This same reasoning was applied in OAG, 1977-1978, No 5222, p 216 (Sept 1, 1977), to prohibit 'round-robining' of bills in legislative committees. 'Round-robining' is the term given to the practice of having one member of the committee go to individual members for their signatures on a vote tally sheet in order to vote out a bill without holding a meeting open to the public to consider the bill.

In addition to requiring that all decisions of a public body as to the appointment of persons to fill vacancies in public office be made at a meeting open to the public, the Open Meetings Act, supra, Sec. 8(3), requires that '[a]ll deliberations of a public body constituting quorum of its members shall take place at a meeting open to the public. . . .'

Therefore, in response to your first question, it is my opinion that the Open Meetings Act, supra, is violated when a committee comprised of quorum of the public body, or subcommittees of a public body, which constructively constitute a quorum of the public body, collectively deliberate on or render decisions on public policy in a closed session on matters which do not fall within the provisions of the Open Meetings Act, supra, Sec. 8, allowing a closed meeting. The fact that these committees are physicially separated while they deliberate on public business does not insulate them from the requirements of the Open Meetings Act, supra.

You also inquire whether the Open Meetings Act, supra, imposes any restrictions or reporting requirements on advisory committees or subcommittees of less than a quorum. In a letter opinion to Senator Joseph Snyder, dated February 22, 1978, it is stated:

'In order to effectuate the clear purpose of the Open Meetings Act, which is to allow the public to view the manner in which the public officials conduct the business of government, it is clear that a portion of the meeting where the public officials receive the essential data by which they will make their ultimate decisions is an integral part of the deliberation stage of a meeting. . . . the public has an intimate interest in knowing those facts which the board will take into account in making its decision.'

While there are no literal restrictions or reporting requirements on such advisory bodies, it is my opinion that to effectuate the purpose of the Open Meetings Act, supra, the advisory committee or subcommittee should provide the public body with the data supporting the reasons for its recommendations and the procedures and methods used in reaching their recommendation.

Frank J. Kelley

Attorney General