Issues Surrounding Virtual Open Meetings During the Pandemic
By Stephen R. Estey, Lauren A. Evers
and Peter M. Grace
BridgeTower Media Newswires
During the COVID-19 pandemic, many public bodies have been utilizing virtual meetings, as permitted by a series of executive orders, the most recent of which being Executive Order 2020-75 (COVID-19).
Issues regarding decisions obtained through such meetings will certainly arise, especially in the land use and zoning context where decisions/approvals are often challenged or hotly contested. The order temporarily suspends certain requirements of Michigan’s Open Meetings Act (OMA), MCL 15.261 et seq., to enable public bodies to meet virtually during the COVID-19 pandemic.
While virtual meetings, and decisions issued from them, are permitted by the order, municipalities, developers and other stakeholders should be wary of potential pitfalls which could lead to legal disputes. As more public bodies utilize virtual meetings, those taking part in such meetings must take into consideration various technical and procedural difficulties.
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Compliance with requirements
One of the primary concerns is noncompliance with the requirements of the order itself. Non-compliance with the order can lead to challenges contesting land use approvals or denials and/or zoning decisions issued during virtual meetings.
The order includes specific requirements which public bodies must follow if conducting a virtual meeting (i.e., that two-way communication must be used, notice requirements that the meeting will be held electronically, and the ability for members of general public to make public comment as they would if the meeting was held in a physical place).
Failure to comply with the requirements of the order may result in challenges on the basis that the decision was in violation of the order, and therefore, in violation of the OMA. Moreover, participation in virtual meetings during the COVID-19 pandemic has exposed technological challenges — such as poor or intermittent internet quality, buffering, connection issues and other problems — as well as possible security flaws in some of the virtual platforms being utilized.
Noncompliance with requirements of the OMA could also create a basis to contest decisions. This could include impermissible uses of “closed sessions,” private “chat” communications or non-compliance with requirements to maintain and make available meeting minutes as outlined in the OMA.
It must be noted, however, that a challenge based on nonconformity with the OMA — to the extent that it would invalidate a decision — could be rectified if a body reenacts the disputed decision so that it thereafter conforms with the OMA’s requirements.
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Pending legislation
As the State of Michigan emerges from the COVID-19 pandemic, it is likely that the use of the technology employed during the pandemic will continue in some fashion to the extent permitted by law. The Michigan Legislature is currently reviewing proposed legislation to amend the OMA in order to permit virtual meetings outside of emergency orders.
On April 24, 2020, Bill No. 5714 was introduced in the House of Representatives which would amend the OMA to allow electronic or telephonic meetings of public bodies during a declared state of disaster or emergency under both the Emergency Powers of the Governor Act and the Emergency Management Act.
Bill No. 5714 provides much of the same relief as the order and, if enacted, would ultimately render the order and future similar orders, unnecessary.
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Adhering to requirements
It is imperative that public bodies adhere to the requirements of the order and the OMA. When possible, virtual meetings held via videoconferencing should also include a call-in telephone number to allow individuals without access to computers or the internet to access the meeting. Decisions regarding which virtual meeting platform to use are also critical in avoiding technical difficulties.
Developers and other stakeholders should be proactive and make every effort to ensure that the municipality is complying with the requirements of the order and the OMA. This includes confirming the public body is following all notice requirements and providing access for members of the general public.
Those with less pressing timelines — especially those who face organized or significant community opposition — may want to consider postponing requests for entitlements until after the COVID-19 pandemic to avoid some of the pitfalls inherent in virtual meetings, such as the technological challenges of making the most persuasive presentation via remote technology.
While virtual meetings are temporarily permitted by the order, the difficulties of proceeding under such a format should carefully be weighed.
Those seeking land use decisions should be aware of and understand the potential risks and challenges associated with decisions made during virtual remote meetings, as the legal and practical issues discussed above could lead to a decision’s invalidation or at a minimum cost additional time and money.
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Stephen R. Estey is a member in Dykema’s Real Estate Department, and represents individuals, municipalities, small businesses and Fortune 500 corporations in all aspects of commercial and governmental real estate development projects. Lauren Evers, an associate in the Business Litigation practice in the firm’s Bloomfield Hills office, handles real estate disputes, including general real estate litigation, easement acquisition, subordinations, and condemnation of agricultural, residential and commercial property. Peter M. Grace, a litigation associate in Dykema’s Business Litigation group, graduated cum laude from Wayne State University Law School in May 2019.
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