Ypsilanti DDA Violates Open Meetings Act, twice in one meeting

October 7, 2008 by  
Filed under Breaking News


DDA Attorney Tammie Tischler, from Pear, Sperling, Daniels, and Eggan.

(October 7, 2008) During a meeting of the Ypsilanti Downtown Development, the DDA board violated not one, but two sections of the Open Meetings Act.

The Director of the Ypsilanti DDA, Brian Vosburg, called an emergency closed session meeting to be held on Friday, October 3, 2008 at 12 noon. The purpose of the meeting was to meet with DDA attorney Tammie Tischler.

The DDA Director said in the meeting notice the “Closed Session (is) to consider material exempt from discussion or disclosure by state or federal statute – (Open Meetings Act 15.268, Section 8(h))”

However, neither the DDA Director nor the DDA attorney would cite which state or federal statute exempts the DDA from the Open Meetings Act. Failing to publicly state the reason for a closed session is a violation of the Open Meetings Act.

YpsiNews called Vosburg on Thursday, before the special meeting, to ask for the specific state or federal statute that exempted the DDA from the Open Meetings Act. Vosburg said he had no comment.

We told Vosburg we weren’t asking for comment about the meeting or to ask specifics about the closed meeting. We simply wanted to know the specific state or federal statute the DDA was citing under paragraph 8(h) to close the meeting from the public. Vosburg told YpsiNews to call the DDA Attorney and he had nothing else to say.

Thursday afternoon prior to the meeting, Ypsinews called the DDA Attorney Tammie Tischler, from the law firm Pear, Sperling, Eggan, and Daniels. Tischler is the contract attorney hired by the DDA. Despite leaving numerous messages for Tischler, Tischler did not return our calls before the meeting.

The DDA Attorney and the DDA Director should be able answer what State or Federal Statute they are citing to justify holding a closed DDA meeting.

The meeting was held on Friday, albeit starting about 10 minutes late. The public portion of the meeting lasted another 10 minutes, during which the board selected Mayor Paul Schreiber (Dem) as interim chair to run the meeting. The board then voted by roll call to go into closed session and YpsiNews was asked to leave.

In addition to failing to disclose the specific reason for the closed meeting, the DDA committed a second violation of the Open Meetings Act by not allowing the public to address the board before going into closed session. The DDA also did not have audience participation as part of the approved agenda.

The Open Meetings Act requires all boards and commission to provide an opportunity for the public to address the board during any public meeting. The DDA, by board rule and policy, has audience participation at the beginning of each meeting after roll call. Yet this emergency meeting had no provision for audience participation.

YpsiNews told the interim chair of the meeting that we believe the meeting was illegal and also informed the chair the DDA had violated the Open Meetings Act by not allowing public comment as required under the Open Meetings Act. There was no response from board members or Mayor Schreiber. DDA Attorney Tischler then closed the door to council chamber.

Tischler has been the DDA contract attorney for about a year. According to Tischler’s professional website, she specializes in IRS and other tax and financial planning matters and has a Masters in Taxation law from Wayne State University. Tischler does not list any experience with government or municipal boards or commissions.

During the meeting, Tischler told the DDA board the purpose of the closed session was to hear communications from the attorney. The reason Tischler gave during the meeting to go into closed session is different from the reason posted in the agenda.

Tischler called YpsiNews on Tuesday, October 7. Tischler said the reason for the Open Meetings exemption was the Freedom of Information Act which exempts Attorney Client privilege. Tischler said that she stated during the DDA meeting that the exemption of FOIA was the reason for the closed meeting.

However, attorney-client communications is not one of the reasons allowed under Open Meetings Act to close a meeting.

In fact, the Michigan Court of Appeals wrote in 1998, “It would be illogical to construe the attorney-client privilege exemption as authorizing a public body to evade the open meeting requirements of the OMA merely by involving a written opinion from an attorney in the substantive discussion of a matter of public policy for which no other exemption in the OMA would allow a closed meeting.”

While a presentation of written opinion from the attorney to the DDA is exempt from FOIA, the Appeals Court has ruled the deliberations of that material by the DDA board may not be done in closed session.

The following is a list of the permitted reasons for closing a public meeting in Michigan.

15.268 Closed sessions; permissible purposes.
Sec. 8. A public body may meet in a closed session only for the following purposes:

  • (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.
  • (b) To consider the dismissal, suspension, or disciplining of a student if the public body is part of the school district, intermediate school district, or institution of higher education that the student is attending, and if the student or the student’s parent or guardian requests a closed hearing.
  • (c) For strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement if either negotiating party requests a closed hearing.
  • (d) To consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained.
  • (e) To consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.
  • (f) To review and consider the contents of an application for employment or appointment to a public office if the candidate requests that the application remain confidential. However, except as otherwise provided in this subdivision, all interviews by a public body for employment or appointment to a public office shall be held in an open meeting pursuant to this act. This subdivision does not apply to a public office described in subdivision (j).
  • (g) Partisan caucuses of members of the state legislature.
  • (h) To consider material exempt from discussion or disclosure by state or federal statute.
  • (i) For a compliance conference conducted by the department of commerce under section 16231 of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.16231 of the Michigan Compiled Laws, before a complaint is issued.
  • (j) In the process of searching for and selecting a president of an institution of higher education established under section 4, 5, or 6 of article VIII of the state constitution of 1963, to review the specific contents of an application, to conduct an interview with a candidate, or to discuss the specific qualifications of a candidate if the particular process of searching for and selecting a president of an institution of higher education meets all of the following requirements:
    (i) The search committee in the process, appointed by the governing board, consists of at least 1 student of the institution, 1 faculty member of the institution, 1 administrator of the institution, 1 alumnus of the institution, and 1 representative of the general public. The search committee also may include 1 or more members of the governing board of the institution, but the number shall not constitute a quorum of the governing board. However, the search committee shall not be constituted in such a way that any 1 of the groups described in this subparagraph constitutes a majority of the search committee.
    (ii) After the search committee recommends the 5 final candidates, the governing board does not take a vote on a final selection for the president until at least 30 days after the 5 final candidates have been publicly identified by the search committee.
    (iii) The deliberations and vote of the governing board of the institution on selecting the president take place in an open session of the governing board.

Section 15.263 of the Open Meetings Act defines the right of the public to address the DDA Board at any meeting where a quorum is present.

15.263 Meetings, decisions, and deliberations of public body; requirements; attending or addressing meeting of public body; tape-recording, videotaping, broadcasting, and telecasting proceedings; rules and regulations; exclusion from meeting; exemptions.

  • Sec. 3. (5) A person shall be permitted to address a meeting of a public body under rules established and recorded by the public body.

Source: State of Michigan Open Meetings Act and Freedom of Information Act

Comments

3 Comments on "Ypsilanti DDA Violates Open Meetings Act, twice in one meeting"

  1. mdbendor on Wed, 8th Oct 2008 6:10 pm 

    Thank you for reporting this. What will
    YpsiNews.Com do next? Does YpsiNews have the resources to get legal assistance?

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