In a nutshell:

• Michigan’s Open Meetings Act, which requires opportunities for public attendance at meetings of public bodies, has been amended by executive order to allow for remote participation.
• Legislatures across the country are trying to figure out both how best to meet and govern remotely and how to allow their local governments to do the same via broadcasting meetings via phone, Internet or television.
• All this may be more difficult for some local governments than for others, especially smaller, rural ones. This doesn’t remove their responsibility to do so. 

The coronavirus pandemic and resulting closures of schools and businesses across the United States has altered daily life for just about everybody. It has also revamped how governments operate, making it more difficult for the public to actively participate in governmental decision-making.

Michigan’s Open Meetings Act

State and local governments have to comply with Michigan’s Open Meetings Act (OMA), which requires that public bodies meet in public. Furthermore, the public has the right to record them on audio or video, and broadcast the proceedings. Governments may not require residents to register or provide their name in order to attend. Finally, the law also requires public notice for meetings.

The standards on whether a meeting of lawmakers falls under this law are pretty strict. Basically, everything except purely social gatherings are considered public meetings. This includes meetings of state and local legislative and governing bodies (e.g., city councils, township boards, school boards), commissions, committees, subcommittees, and authorities empowered to perform government or proprietary functions. 

Violations of this law can be challenged in court by the state attorney general’s office, county prosecutors’ offices, and ordinary citizens. 

Executive Order 2020-15: Public meetings during a pandemic

During this unprecedented time of pandemic, which requires people to socially distance themselves, Governor Whitmer has issued an executive order allowing for remote participation in public meetings and hearings and relief from some meeting requirements until April 15. It seems likely that this will be extended.

The order allows for meetings to be held electronically, including by telephone or video conferencing, but in a manner in which the public may participate. In other words, two-way communication is required, even if it’s via typed comments or questions read aloud during the meeting. Governments must still post advance notice of public meetings that will be held electronically with procedures on how the public may participate.

How it is going elsewhere 

Michigan state lawmakers and local officials are not alone in trying to make this work practically.

Some states were better prepared than others. Oregon and Wisconsin had preexisting rules allowing their legislatures to vote remotely in emergency situations. Other states, including Utah and Pennsylvania, have quickly passed similar rules. However, many state constitutions, including Florida’s, Minnesota’s and New York’s, require lawmakers to meet in person. And in New Hampshire, lawmakers voted down remote voting amid concerns it would violate their constitution. 

States have taken unusual actions in recent weeks. In Arkansas, state House members met in a college basketball arena to allow for social distancing. In South Dakota, lawmakers are setting up a video conference system to live-stream to the public, with a few members in the capitol to comply with state rules. In Vermont, lawmakers adopted an emergency rule to allow members to spread out throughout the visitors’ gallery in order to social distance. Next time they need to convene, they will test remote voting. 

In Pennsylvania, remote lawmakers messaged or emailed votes to designated colleagues. Ohio lawmakers dressed more informally for meetings, citing the fact that business attire is laundered less frequently. They were also assigned to separate rooms during deliberations to comply with social distancing requirements. 

Others have bent the rules. In Minnesota, legislators developed a $330 million coronavirus response bill via private conference calls rather than public hearings. While these things are being done to safeguard public health, they can damage trust in government if lawmakers skirt even the intention of open government laws. Open government advocates acknowledge that this is a unique time when old rules do not apply, but encourage governments to postpone non-essential matters and make sure the public is still participating.

The Michigan legislature has not met since March 17, when they passed a $125 million coronavirus response. Since that time, at least two lawmakers have been diagnosed with COVID-19 and another has died, likely from the virus. They are scheduled to reconvene on April 7 to address a concurrent resolution allowing the governor to continue her emergency powers during this pandemic. They are planning to adhere to appropriate safety precautions so as not to spread the virus, including taking temperatures prior to allowing members to enter the capitol, giving legislators a time slot to report to the floor so that no more than five are reporting at any time, and allowing only essential staff on the floor.

Governor Whitmer at first seemed to urge state lawmakers to stay away from Lansing for now and allow her to continue to exercise her executive order for emergency powers, which lasts 28 days. However, extending her executive order needs legislative approval and she has since clarified her comments, suggesting they convene briefly and safely to extend emergency and disaster orders. There remains disagreement between the governor and some lawmakers on how long these orders should be effective and concerns about checks and balances being met if the legislature does not convene.

Some have argued that lawmakers traveling to Lansing from all over the state and then back to their hometowns presents a unique risk of spreading the outbreak even further across the state, so remote sessions seem the best option. However, if in person meetings are deemed necessary, legislative leaders might observe the lessons from other states to try something different. 

The Michigan Constitution gives the governor power to “convene the Legislature at some other place when the seat of government becomes dangerous from any cause.” They could meet in the Lansing Center near the capitol or the Breslin Center on the Michigan State University campus to allow for extra social distancing. They could capitalize on the Michigan Government Television apparatus already in place to connect legislators in different places. 

Meanwhile at the local level

Cities and other local governments across the country are learning how to govern during this crisis, too. Washington state was hit early and hard by the virus. The Seattle City Council has held meetings remotely since March 9, passing measures over a Skype audio line and allowing comments by voicemail or email. In Kirkland, Washington, public meetings were broadcast  in the lobby of city hall for residents without Internet access.

Other states have issued orders to make it easier for local governments to meet. Indiana’s governor issued an order to allow local governments to vote remotely if one member is physically present; this order limits remote votes to essential issues. An Oklahoma bill allows teleconferencing options for local governments. Tennessee and Ohio have similar orders. Colorado lawmakers are exploring whether electronic forms of communication comply with the state’s open meetings act.

In Michigan, the Holland City Council is still meeting twice a month, but is practicing social distancing at meetings and encourages the public to watch from home and submit public comments via email. 

All these innovations may be more difficult for smaller and more rural local governments that may lack the staff and capacity of larger local governments. Additionally, high-speed Internet access may be less available in rural areas. It is important to remember that, while these are unique times that require patience from all, local units will not receive a free pass to ignore the law. It is important to make sure that local units are following open meeting requirements and finding ways to include the public. 

Michigan’s local governments may look at several opportunities to convene while still practicing social distancing. Meeting chambers are usually small, as are the public seating areas. Online meetings may be possible where high-speed Internet access is readily available, but many parts of the state don’t have that. Local governments may want to investigate use of high school gymnasiums or recreation centers. With proper audio equipment, sessions may be held outdoors. 

While these local governments may be admonished to only deal with matters warranting special attention during these unusual times, we must recognize that units with July-June fiscal years will be adopting budgets for the next year.