Michigan Supreme Court declines to hear Open Meetings Act-related lawsuit against Ottawa County board
The decision now resolves two of the five lawsuits filed against the Ottawa Impact-led board of commissioners filed since January 2023.
LANSING — The Michigan Supreme Court has declined to weigh in on a lawsuit in Ottawa County that alleged incoming commissioners violated the state's Open Meetings Act in the months after being elected, but before taking office.
The Michigan Court of Appeals unanimously ruled Jan. 26 that Muskegon County 14th Circuit Court Judge Matthew R. Kacel didn't make a legal error when he dismissed the lawsuit, filed in March 2023.
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In an order issued Aug. 30, the Michigan Supreme Court declined to hear the case, effectively ending the litigation.
Read More: Plaintiffs appeal OMA case against Ottawa County to Michigan Supreme Court
Read More: Court of Appeals hears arguments in Open Meetings Act violation suit
The plaintiffs — four county residents — argued that the new commissioners’ first official meeting on Jan. 3, 2023, was proof of a violation. During that meeting, commissioners backed by Ottawa Impact added several items to the agenda and took what seemed to be pre-orchestrated actions including firing the county administrator and corporation counsel, demoting the health officer, as well as dismantling the county's Diversity, Equity and Inclusion Department.
Joe Moss founded the far-right fundamentalist group in 2021 after he took issue with pre-K-6 school mask mandates during the COVID-19 pandemic. He launched the political action committee under the premise of "defending parental rights" and to "thwart tyranny" within the state and federal government.
The plaintiffs argued that the Ottawa Impact electees were a de facto public body subject to OMA beginning Nov. 9, 2022 (the day after the general election) because, during that period, they constituted a quorum of the board and exercised governmental authority over county employees, even though they were not yet sworn into office.
The plaintiffs claim the commissioners "failed to inform the people of Ottawa County of the governmental decisions" they made between Nov. 8 and Jan. 3, their attorney Mark Brewer of Goodman Acker said early last year. "The people of Ottawa County were denied their right to petition the government."
Supporters of Ottawa Impact argue the commissioners weren't technically office-holders before Jan. 3, and therefore couldn't have violated OMA, even if they met or made decisions prior to taking office — including naming a chairman and selecting new counsel.
“You don't take a position or hold the power until you take the oath of office,” board counsel David Kallman, of Kallman Legal Group, said early last year. “There are no de facto legislators. You are either in the position, or you're not in the position. Our clients had no authority or power to act prior to Jan. 3. This is an absurd argument.”
In a written opinion July 14, 2023, Kacel agreed, saying an individual or group becomes a public body for the purposes of OMA “only when it is ‘empowered’ to exercise government authority or perform a government function by ‘a state constitution, statute, charter, ordinance, resolution or rule.’”
Brewer appealed shortly afterward and argued in on Jan. 3 — exactly one year after the meeting in question took place — in front of the Michigan Court of Appeals, arguing that Kacel erred because he made “fact findings” in his written opinion with no evidence taken into the record for him to rule on.
Brewer said the lower court should have allowed discovery — the formal process of exchanging information between the parties about the witnesses and evidence they will present at trial — and then ruled on the county's motion to dismiss.
“The judge didn't have any evidence on record — only our pleadings,” Brewer said.
The judges presiding — James Robert Redford, Michael J. Riordan and Kathleen J. Feeney — acknowledged Brewer had a novel legal theory, but ultimately didn't agree.
On March 6, Brewer filed an appeal with the Michigan Supreme Court, arguing that if novel legal theories aren't allowed to be brought forward, state laws will never grow or evolve.
"The Court of Appeals simply ignored its own binding decisions that novel, fact-intensive legal claims should not be dismissed," Brewer wrote in the filing this week. "The law generally — and of open meetings specifically — will never grow to address new evasions of the OMA unless new legal theories can be asserted and tested in a factual crucible.
Read More: Second lawsuit against Ottawa Impact-led commission targets decisions made Jan. 3
On Aug. 30, the state’s high court issued a one-sentence response declining to hear the case, “because we are not persuaded that this court should review the questions presented.”
Brewer said it’s unfortunate that the court didn’t consider hearing the case because “ it could set a very bad precedent for the future.”
“This is a technique to evade the Open Meetings Act, and it doesn't have to be a set of newly elected officials. A group of incoming officials who are just re-elected, for example, could meet prior to taking office and do all the same kind of plotting and planning out of the public eye and get away with it,” Brewer said.
He explained that the only way to toughen up Michigan’s Open Meetings Act and Freedom of Information Act — also known as “Sunshine Laws” — typically is through the courts or the Legislature.
However, citizens also could demand action.
“There's a lot of problems with the Open Meetings Act, and now this is just the latest one,” he said. “You can always hope and ask for a legislative solution, but fortunately, voters can take matters in their own hands in this state. And there could be a petition drive to amend the Open Meetings Act. It’s not easy to do, not cheap, but it's there, and I hope people take a serious look at that.”
Brewer said residents should pay attention to the issue because the scenario in Ottawa County could be used as a blueprint in municipalities statewide — and that affect everyone.
MSC Order 08.30.24165KB ∙ PDF fileDownloadRead the order issued by the Michigan Supreme Court on Aug. 30.Download
“Folks who engage in this kind of activity are secretly spending and perhaps wasting the taxpayers money,” he said. “I think transparency and open government has great appeal across the ideological spectrum. It affects all of us, because when there’s secrecy, then you get corruption. Then you get misspending of money.”
He pointed to the recent corruption scandals tied to former statehouse speaker Lee Chatfield and former state Senate leader Mike Shirkey as examples of what happens when there is no transparency of campaign funds.
“At the bottom of almost every one of those scandals is secrecy. You know, transparency isn’t perfect, but it’s a big help,” Brewer said. “It creates a disincentive for people to try to get away with that stuff.”
Brewer said he would love to see citizens drive much-needed changes.
“I think a group of motivated citizens who care about open government and transparency in government could pull that off,” he said. “And I would love to work with such a group.”
Other litigation against the county
The decision last week means the OMA lawsuit is now over, meaning two of the five lawsuits against the county board since January 2023 have now been resolved.
In February, the yearlong lawsuit filed by Administrative Health Officer Adeline Hambley against the county board was settled with her remaining in her role.
Although Hambley didn’t receive any additional compensation, the settlement agreement allowed a judge to determine if Hambley’s legal fees would be covered. Last week, a judge ruled that all her attorney’s fees must be paid for by the county, totaling $188,000.
Read More: Judge orders Ottawa County to pay $188K for health officer’s legal fees after yearlong lawsuit
Three lawsuits remain active against the OI-led board, including an age discrimination claim and a religious discrimination claim, both filed in October, as well as a wrongful termination claim from former administrator John Gibbs.
On Oct. 24, 2023, a finalist for an executive aide position to former county administrator John Gibbs sued in Ottawa County's 20th Circuit Court, alleging age discrimination by Gibbs when he hired a younger candidate with fewer qualifications than the county required. That case was assigned to Kent County’s 17th Circuit Court; no hearings have been scheduled.
On Oct. 3, 2023, a Grand Haven pastor sued in federal court, claiming religious discrimination by Moss. Rev. Jared Cramer of St. John’s Episcopal Church said Moss is using his position to "endorse a particular set of religious beliefs and exclude a particular set of religious beliefs" and therefore "is discriminating against certain religious beliefs," which is a violation of the Establishment Clause of the First Amendment. Moss invited Cramer to give an invocation in November, which Cramer said did not mitigate the discriminatory acts alleged. On Jan. 2, at its inaugural meeting, the commission approved an invocation procedure. The case has now reached the discovery phase, according to Cramer's attorney, Sarah Riley-Howard.
On Feb. 29, the county board fired Gibbs, one week after placing him on paid administrative leave. At the time, the OI commissioners said they were firing Gibbs “for cause” after Deputy Administrator Ben Wetmore and administrative aide Jordan Epperson — both controversial hires by Gibbs — made allegations that Gibbs acted inappropriately and neglected his job duties. Gibbs also claims in his lawsuit that Moss defamed him on social media that “lack factual support” and that Moss “knew that the defamatory statements were false.” The case has been assigned to Jane M. Beckering. Although no hearings have been scheduled, there have been several filings over the summer, most recently with the county requesting that the lawsuit be dismissed; Gibbs’ attorney argued against the request in a response last month.
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