Parliamentary Procedure and the OMA

1. Parliamentary Procedure and the OMA Anne M. Seurynck Foster Swift Collins & Smith, PC 1700 E Beltline Ave, NE, Suite 200 Grand Rapids, MI 49525 (616) 726-2200 aseurynck@fosterswift.com

2. OverviewParliamentary Procedures • Parliamentary procedure is a set of rules for conduct at meetings. Meetings are more efficient when members have an understanding of the rules that govern them. • Rules of procedure govern meeting processes such as bringing business to the board or council, deliberating and making decisions. • There is a hierarchy of rules that govern procedure: • State Law and Charters • Local Rules of Procedure

3. OverviewParliamentary Procedures • Commonly Used Terms • Agenda • Chair or Presiding Officer • Quorum • Motion • Majority • Two-thirds • Unanimous • Roll Call • Closed Session • Resolution

4. Local Government Rules of Procedure • Rules of Procedure are determined by the local legislative body, but must not conflict with or state law, and generally covers: • Meeting Agendas • Notification of Meetings • Conduct of Meetings • Public Participation • Special and Emergency Meetings • Board or Council Correspondence

5. Local Government Rules of Procedure • Basic concepts of a meeting: • State law dictates who the presiding officer is; • A quorum must be present; • One proposition on the floor at a time; • One member speaking at a time; • The issue and not the person is what is under discussion; and • Usually a majority vote decides.

6. Quorum • A quorum is the minimum number of members who must be present in order that business can be transacted. • If a quorum is NOT present at a meeting, the board or council may not transact any business, but may adjourn, or recess to take steps to obtain a quorum.

7. Robert’s Rules of Order • The most commonly used written rules of order for the conduct of local government meetings are Robert’s Rules of Order. • While it is not easily understood, it is the most comprehensive, fair and complete guide. • http://www.robertsrules.com/book.html

8. Robert’s Rules of Order - Motions • Main Motions • Motion made by one member after being recognized by the Chair/Presiding Officer • Motion seconded by another member • The Chair/Presiding Officer repeats the motion • Deliberation on Motion • Vote on Motion • Chair/Presiding Officer announces results of vote

9. Robert’s Rules of Order - Motions • Subsidiary Motions • The most common subsidiary motions: • Motion to Table • Motion to Postpone • Motion to Amend

10. Robert’s Rules of Order - Motions Subsidiary Motions Continued: • Motion to Table – a Motion to “lay on the table” is used to temporarily delay the discussion on a motion until the board or council decides to bring the motion back to the board or council for consideration by a motion to “take from the table.” • A motion to “lay on the table” must be seconded, it is not debatable or amendable, and requires a majority vote. • Once a matter has been laid on the table, no other motion on the same subject that would either conflict with or presents the same question as the motion on the table is appropriate. • If a motion to “take from the table” is not made at the next regular meeting of the board or council, then the motion dies.

11. Robert’s Rules of Order - Motions Subsidiary Motions Continued: • Motion to Postpone – a motion to postpone is intended to delay consideration of a matter later in the current meeting or to a future meeting. A motion to postpone must be seconded, is debatable, and requires a majority vote. • There are two subsets of a motion to postpone:

12. Robert’s Rules of Order - Motions Subsidiary Motions Continued: • Motion to Amend – a motion to amend is intended to change or modify a motion before a vote is taken. Once an amendment has been made, seconded, and restated by the chair/presider of meeting, it is open for discussion and voted upon. If the amendment is adopted, then discussion returns to the main motion, as amended.

13. Robert’s Rules of Order - Motions • Motions that reopen a previously completed matter – are motions that permit a board or council to change its mind once a matter is voted on and decided. • If a member wishes to change a decision made in the same meeting, they would make a motion to reconsider. • If a member wishes to change a decision made and adopted at a previous meeting, they would make a motion to rescind.

14. Robert’s Rules of Order - Motions • Motion to Reconsider • A motion to reconsider is useful when a member feels the board or council might have made a decision without proper debate or new information is brought their attention. • A motion to reconsider must be made by a member who voted on the prevailing side. Meaning, a member who voted yes on a motion that passed or one who voted no on a motion that failed. • A motion to reconsider can be made at any time during a meeting, but must be made at the same meeting that the original vote was taken. • A vote is first taken on whether or not to reconsider. If the motion to reconsider passes by a majority vote, then the main motion may be debated and voted on.

15. Robert’s Rules of Order - Motions • Motion to Rescind • A motion to rescind can be made by any member, regardless of how that member voted on the original matter. • If proper notice of the intent to present such a motion is provided to the members before the meeting, then only a majority vote is required. • If proper notice is not provided, then the vote required to rescind is two-thirds of those present and voting or a majority of the entire board or council (not just those present).

16. Robert’s Rules of Order - Motions • Frequently Asked Questions regarding Motions: Q: If I second a Motion do I have to support it? A: No – Seconding a motion does not indicate that the member is in support of the motion, only that he or she thinks the idea should be discussed. Q: What if a motion is made and seconded, but does not have a majority vote. A: The motion fails. Q: What if there is a tie? A: The motion fails.

17. Robert’s Rules of Order - Vote • State law dictates how many votes are necessary to pass a motion. The general rule is, if no state law governs, then only a majority of those members present is required.

18. Open Meetings Act • The Open Meetings Act was expressly enacted for the purpose of requiring certain meetings of public bodies to be open to the public, to require notice and the keeping of minutes of the meetings, to provide enforcement of the Act, to provide invalidation of decisions under certain circumstances and to provide penalties for non-compliance. • All meetings subject to the Open Meetings Act must be open to the public and held in a place available to the general public. • The Americans with Disabilities Act requires the public body to provide disabled individuals with a reasonable opportunity to request necessary, reasonable auxiliary aides and services to participate at public meetings.

19. Open Meetings Act – General Rules of Meetings • A public body may not place conditions on attendance such as requiring visitors to sign in or provide names. • People should be able to sit anonymously in the audience.

20. Open Meetings ActPublic Comment • All persons in attendance at a public meeting have the right to address the public body. • Have the Board or Council develop a policy on public comment that covers: • Time limits • Whether the speaker must give his/her name and address

21. Open Meetings ActRight to Record • The right to attend a meeting of a public body includes the right to tape record, videotape and broadcast the public proceedings via live radio and television. • Keep this rule in mind if the Library prevents videotaping generally in the building where the open meetings are held.

22. Open Meetings Act – Definition of Public Body • Public body” means any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, that is empowered bystate constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function; a lessee of such a body performing an essential public purpose and function pursuant to the lease agreement; or the board of a nonprofit corporation formed by a city under section 4o of the home rule city act, 1909 PA 279, MCL 117.4o. • Applies to Library Board meetings. • Committees and Subcommittees that have only advisory authority may not fit the definition of Public Body, since they have no decision-making authority.

23. Open Meetings ActWhat is a Meeting? • “Meeting” means the convening of a public body (1) at which a quorum is present (2) for the purpose of deliberating toward or rendering a decision (3) on a public policy. • The Open Meetings Act does not apply to a conference or informational gathering, provided that the meeting does not involve deliberation and is not designed to circumvent the Act. OAG, 1982, No. 6074. • A public body may convene to listen to the concerns of a neighborhood group or board of directors without complying with the Open Meetings Act, provided that the body does not deliberate toward or render a decision. OAG, 1978, No. 5364. • Consider e-mail use.

24. Open Meetings ActNotice Public Meetings Must be Properly Noticed. • Within ten (10) days after the public body’s first regular meeting of the calendar or fiscal year, it must post a notice at its principal office stating the dates, times and places of its regular meetings. • A public notice shall always contain the name of the public body, its telephone number if one exists, and its address. • A public notice for a public body shall always be posted at its principal office and any other locations considered appropriate by the public body. Cable television may also be utilized for purposes of posting public notice. Also, the new law may require a website posting if applicable.

25. Open Meetings ActNotice Public Meetings Must be Properly Noticed. • Also, there may be other applicable laws. For example, public hearing notices regarding the budget may have special requirements. • Upon written request, the secretary must furnish a copy of the notice to any newspaper or radio or television station located within the state free of charge.

26. Open Meetings ActNotice Rescheduled Regular Meetings Must be Properly Noticed. • If a public body changes its regular meeting schedule, it must post a new notice • stating the changes within three (3) days after the meeting at which the change was made and • at least 18 hours before the rescheduled meeting in a prominent and conspicuous place • at both the public body's principal office and; • if the public body directly or indirectly maintains an official internet presence that includes monthly or more frequent updates of public meeting agendas or minutes, on a portion of the website that is fully accessible to the public.

27. Open Meetings ActNotice Special Meetings and Recessed Meetings Must be Properly Noticed . • Special meetings and meetings recessed more than 36 hours require that the meeting be posted 18 hours in advance of the meeting in a prominent and conspicuous place • at both the public body's principal office and; • if the public body directly or indirectly maintains an official internet presence that includes monthly or more frequent updates of public meeting agendas or minutes, on a portion of the website that is fully accessible to the public.

28. Open Meetings ActNotice Public Meetings Must be Properly Noticed on the Website. • PA 528 of 212 added requirements for the website notice below. This website notice applies to rescheduled regular meetings, special meetings or meetings recessed more than 36 hours. • The public notice on the website shall be included on either the homepage or on a separate webpage dedicated to public notices for nonregularly scheduled public meetings and accessible via a prominent and conspicuous link on the website's homepage that clearly describes its purpose for public notification of those nonregularly scheduled public meetings

29. Open Meetings ActClosed Sessions • A closed session must be preceded by a vote in an open session. • The vote and the purpose of the closed session must be stated and included in the minutes of the open session. • At the conclusion of the closed session, vote must be taken to close the closed session and re-open the open session before the meeting may be adjourned.

30. Open Meetings ActClosed Sessions Closed Sessions • A closed session may be called by a majority vote of the members: • To consider the dismissal, suspension, discipline, complaints, charges or periodic personnel evaluations of a public officer or employee, if the named person requests a closed hearing; or • For strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement, if either party requests a closed session.

31. Open Meetings ActClosed Sessions • A closed session may be called by a two-thirds roll call vote of the members: • To consider the purchase or lease of real property up until the time an option to purchase or lease is acquired; • This is only the purchase of property • Does not include the sale • There has been proposed legislation about adding the “sale” of property – not law yet!

32. Open Meetings ActClosed Sessions 2/3 Roll Call Vote • To consult with the municipal attorney regarding trial or settlement strategy in connection with specific pending litigation, if an open meeting would have a detrimental financial effect on the public body; • Threat of litigation not enough. • If a consent judgment has been entered or a settlement agreement reached, public body may not use this exemption to discuss the execution of the judgment or agreement; there have to be specific unresolved issues in the litigation. Detroit News, Inc v City of Detroit, 185 Mich App 296; 460 NW2d 312 (1990). • The attorney representing public body in the closed session does not have to be the actual attorney litigating the matter; any attorney who has an attorney-client relationship with the public body would suffice. Manning v East Tawas, 234 Mich App 244; 593 NW2d 649 (1999).

33. Open Meetings ActClosed Sessions 2/3 Roll Call Vote • To review the specific contents of an application for employment or appointment to a public office, if the candidate requests that the application remain confidential. All interviews by a public body for a public office must be open, however. • Can not be used to compare candidates in closed session. • Very limited exemption.

34. Open Meetings ActClosed Sessions 2/3 Roll Call Vote • To consider material exempt from discussion or disclosure by state or federal statute. • Documents exempt under FOIA (except the “frank communication” exemption) • Attorney-Client Privilege • HIPAA or medical issues • Michigan Library Privacy Act – “library records” • Closed session minutes

35. Open Meetings ActMinutes • Minutes • Minutes of each meeting must be kept showing the time, date and place of the meeting. The minutes must also state the names of all members present and absent, any decisions made, all roll call votes taken at the meeting and the reason for any closed sessions held. • Proposed minutes must be made available for public inspection within eight (8) business days after the meeting at which the minutes were taken. • Any corrections to the minutes must be made at the next meeting, and the corrected minutes must show the original entry and the correction. • Approved minutes must be available for public inspection within five (5) business days after the meeting at which the minutes were approved.

36. Open Meetings ActMinutes • During the closed session, a separate set of minutes must be taken by the clerk or designated secretary of the public body. The closed session minutes must be retained by the clerk and are not available to the public. • The closed session minutes can only be disclosed if required by a civil action filed under the Open Meetings Act. • Closed session minutes must be retained by the public body for at least one year and one day after approval of the minutes of the meeting at which the closed session was held. • Discussion of closed session minutes before approval of the minutes may also be made in closed session

37. Open Meetings ActRemedies • A decision made by a public body may be invalidated if the public body has not complied with the Open Meetings Act. • In any case where a public body discovers it has failed to comply with the Act or is charged with failing to comply, the public body may re-enact the disputed decision in conformity with the Act. A decision re-enacted in this manner shall be effective from the date of re-enactment and shall not be declared invalid by reason of the deficiency in the procedure used in its initial enactment. • If a public body violates the Open Meetings Act, a person may commence a civil action to compel compliance or to enjoin further non-compliance with the Act.

38. Open Meetings ActRemedies • If a public official is found to have intentionally violated the Act, the official may be held personally liable for court costs and actual attorney fees as well as up to $500 in damages. • A public official who intentionally violates the Act is guilty of a misdemeanor punishable by a fine of up to $1000. For a second offense during the same term of office, the maximum fine increases to $2000 and the public official may be imprisoned for up to one (1) year.

39. Questions? Anne M. Seurynck 616.726.2240 | aseurynck@fosterswift.com