Did Erica Moon Mohr Break the Law By Disclosing the Contents of a Closed Door Session?

During last Friday’s public session before the closed session, board member Erica Moon Mohr read a statement. During the statement, TCAPS attorney (and Cooley grad) Jeffrey Butler began telling at Mohr to “stand down.” The Butler accused Mohr of breaking the law by disclosing information that was discussed in a closed door setting.

“Sorry, closed door session – can’t talk about it” — is the mantra that Sue Kelly and the rest of the board members are hiding behind. They’re still hiding behind it, as of this writing. TCAPS, WTCM commentators and many members of the public appear to be accepting without question that it’s illegal for a board member to disclose, in a general nature, what is discussed in a closed session.

But is it?

Is it illegal in Michigan for a public board member to disclose what is discussed in closed session?

The real answer, guys, is we don’t know. The Open Meetings Act does not directly address the issue. There has never been a Michigan Court of Appeals case asking for an answer. It is not clear in Michigan whether it is illegal for a public board member to disclose what is said in closed session.

The Michigan Open Meetings Act says that the public body cannot release transcripts, recordings or minutes of what happens in closed session. The law does not expressly prohibit a board member from whistle blowing about what they see as malfeasance, or speaking about what happened without releasing a transcript. Look at Michigan Compiled Law 15.267.

There is an attorney general opinion from several years ago saying that that 15.267 obviously includes disclosures by board members, but sorry, it doesn’t. If it did, it would say as much in plain language. Attorney General opinions are not binding. The plain language of the law doesn’t extend to statements by board members, only the release of recordings and transcripts.

So does Erica Moon Mohr belong in the slammer for the things that she has said? TCAPS attorney Butler was jumping up and down, metaphorically, screaming that she was breaking the law, but the law just doesn’t expressly prohibit what Mohr has said and done.

Mohr made some allegations about comments that have been made. Like one member stating to Mohr that “I don’t even like you. I try not to look at you.” The spirit of 15.267 is hardly to let a board member say something like that to another and have it go unchecked under supposed confidentiality laws.

Sorry, Butler, it’s a gray area. And you don’t call on someone to stand down for a gray area.  I call for Butler to stand down asking others to stand down.

More later.

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2 thoughts on “Did Erica Moon Mohr Break the Law By Disclosing the Contents of a Closed Door Session?”

  1. I am not a district resident but have been following this story. The bigger questions at hand are:

    1) It seems Sue Kelly (and others) violated the Open Meetings Act by contacting each board member to discuss concerns with the superintendent. Ms. Moon Mohr seems to indicate in her letter to the board that this occurred more than once. This sort of conduct seems to suggest a willful intent (multiple incidents) and should be punished.

    2) Why was a closed meeting session called? A public body may meet in a closed session only for the following purposes (one applies to the situation at hand, apparently, assuming there have been no formal complaints or charges):

    (a) To consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing. A person requesting a closed hearing may rescind the request at any time, in which case the matter at issue shall be considered after the rescission only in open sessions.

    Did the superintendent request the discussion occur in a closed meeting? It was her right to do so. If so, fine. IF NOT, this is a violation. Was the public made aware of the purpose of the closed session? I’ve not seen the meeting notice or agenda.

    Did Ms. Moon Mohr violate the O.M. Act by disclosing the purpose of the meeting and her opinions with regard to the meeting?

    As cited in your article, 15.267 covers closed sessions; roll call vote; separate set of minutes. If we visit 15.267 (2), it states: A separate set of minutes shall be taken by the clerk or the designated secretary of the public body at the closed session. These minutes shall be retained by the clerk of the public body, are not available to the public, and shall only be disclosed if required by a civil action filed under section 10, 11, or 13.

    So, at first blush, one might state, “Yes, certainly she did.” It would’ve been prudent to report to a regulatory body as a whistleblower vs. the statements made to the public during the meeting. However, Ms. Moon Mohr may have navigated a fine line in that she expressed opinions about conduct in the closed meetings but did not disclose direct quotes (she labels them as attacks, etc) nor does it appear that confidential info. was released.

    So long as confidential information is not involved, board members appear to be free to exercise their First Amendment rights to communicate general matters that are discussed in closed session. This opinion assumes the board has not adopted an ethics code to specifically prohibited certain communications. However, even if such a code exists, what if a member’s motivation is based on a good faith belief that the actions of the board in closed session are unlawful? I believe this was Ms. Moon Mohr’s intent and her conduct should not be punished.

    On another matter – So, why was Mr. Butler in attendance for the closed session? Further, why was he in attendance afterwards? That’s some fine billable hours in what could’ve been accomplished via a conference call (very expensive firm). Was it an attempt to try to intimidate Ms. Moon Mohr? The superintendent (who would learn of the attorney’s presence)?

    It seems some serious housecleaning needs to happen in that district.

  2. Better than a decade ago, at Kalkaska Public Schools, then Superintendent Dan McKenzie, was accused of looking at porno sites on his school owned laptop, during school hours. This matter was taken up in closed session, legal counsel for the district made his disciplinary recommendations and all board members except one voted to discipline according to those recommendations. Within days, the dissenting board member’s wife told everyone what happened in that closed session.
    I checked back then with lawyer friends and the AG’s office and was told that the Closed Meeting Act does not specifically forbid or make it illegal for attendees of those closed meeting from telling anyone whatever they want to. I would have thought by now, a case would have made its way up the court system. Perhaps Ms Moon Mohr will be that case.

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