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.