The Record Eagle filed an Open Meetings Act lawsuit against Sue Kelly and the TCAPS board. The Record Eagle alleges a laundry list of things that the TCAPS board did to violate the Open Meetings Act and FOIA laws. And they’re guilty. We’ll detail those many, many things later. For now, let’s get to the crux of the matter.
Sue Kelly does business using something called a walking quorum. She talks to the board members in her inner circle, one at a time, before the meeting. That way, all the issues are discussed and decided ahead of time, without public discussion. They just vote to “ratify” what all of them, except Erica Moon-Mohr, already decided in advance. This has happened with so many things – bringing on Pavelka, negotiating and approving the Cardon separation agreement, etc. This is what the public doesn’t like. Sue Kelly doesn’t seem to care that they don’t like it.
After many internet searches, I’ve learned that this way of conducting board business is called a walking quorum. Another term is serial meeting. Another term is sub quorum. Another term is round the table.
This is the $180,000 question – are walking quorums/serial meetings/sub quorums/round the tables legal?
The seminal Michigan Court of Appeals case is Booth Newspapers Inc v. Wyoming City Council. In the case, the city council voted for closed session. Then, they passed two resolutions with virtually no discussion.
The Court of Appeals said that their job is to give effect to the intent of the legislature’s Open Meetings Act. They say that by having round-about discussions, it’s clear that the city council leader was trying to get a sense of direction from council members before the meeting. The Court of Appeals said that’s enough to violate the Open Meetings Act. In the end, the Court of Appeals ordered the City of Wyoming to pay attorney fees to the newspaper in the amount of $47,662.05.
Booth Newspapers also has some great discussion about the limits of the Open Meetings Act when it comes to attorney-client privilege closed sessions. The board doesn’t get a free for all to discuss whatever they want in closed session just by using the term “attorney-client privilege” at the outset. Instead, the closed session is limited to topics and discussions only directly related to the legal issue at hand. It’s not a place for say, separation negotiations:
“To effectuate the clear legislative intent in the OMA to promote openness and accountability, the scope of the discussion in closed session must legitimately relate to legal matters, and not bargaining, economics, or other tangential nonlegal matters.” (Booth.)
There are a bunch of cases that are distinguishable from Booth that rule in favor of the governing body: This one, this one, that one, that all had a different outcome on factual grounds. However, in the case at hand, there’s not a dispute that there was no public discussion on many issues. Jim Pavelka showed up out of nowhere. So did the Ann Cardon separation agreement. The court shouldn’t be fooled by quantity over quality. Booth is still the law. Here’s another case that decides against the public body, Morrison v. East Lansing.
The Record Eagle will likely have to take it to the Court of Appeals, because it would take a lot of bravery for the 13th Circuit Court to rule against a fellow Republican. It looks like the RE has a good chance to succeed at the higher level if that’s what they choose to do.
The walking quorum is what the public is so incensed about. Kelly doesn’t think there’s anything wrong with it. There is.
If I were the Record Eagle, I would have touched on all of this a bit and used the words walking quorum in the motion for summary disposition. However, their motion is great, and we can’t wait to read how Jeffrey Butler tells them to: