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Vermilya v. Delta College Board of Trustees

Court of Appeals of Michigan

July 31, 2018

HARLAN VERMILYA and ANN ANKLAM, Plaintiffs-Appellees,

          Saginaw Circuit Court LC No. 16-028824-CZ

          Before: Ronayne Krause, P.J., and Gleicher and Letica, JJ.

          PER CURIAM.

         In this action alleging multiple violations of the Open Meetings Act (OMA), MCL 15.261 et seq., the trial court issued an opinion and order granting in part and denying in part defendant's motion for summary disposition pursuant to MCR 2.116(C)(8) (failure to state a claim) and (C)(10) (no genuine issue of material fact). Relevant to this appeal, the court also granted plaintiffs summary disposition in part under MCR 2.116(I)(2) (nonmoving party entitled to judgment), ruling that defendant's failure to identify the "specific pending litigation" it would be discussing in closed session violated MCL 15.267(1) and MCL 15.269(1). Defendant appeals by right. We affirm.

         This case arises out of a January 12, 2016 meeting in which defendant passed a motion to enter closed session "for the purpose of discussing specific pending litigation with legal counsel," pursuant to MCL 15.268(e). Plaintiffs brought suit, alleging in part that defendant violated the OMA by failing to name the pending litigation it planned to discuss. Defendant moved the trial court for summary disposition, arguing that MCL 15.268(e) had no such requirement. Plaintiffs' position was that defendant's meeting minutes failed to show the "purpose" for holding a closed session meeting, as required by MCL 15.267(1) and MCL 16.269(1). The trial court agreed with plaintiffs.

         We review de novo a trial court's decision to grant summary disposition. Local Area Watch v Grand Rapids, 262 Mich.App. 136, 142; 683 N.W.2d 745 (2004). We also review de novo questions of statutory interpretation. Speicher v Columbia Twp Bd of Trustees, 497 Mich. 125, 133; 860 N.W.2d 51 (2014).

         The foundational principles of statutory interpretation are well established:

When interpreting a statute, we follow the established rules of statutory construction, the foremost of which is to discern and give effect to the intent of the Legislature. To do so, we begin by examining the most reliable evidence of that intent, the language of the statute itself. If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted. Effect should be given to every phrase, clause, and word in the statute and, whenever possible, no word should be treated as surplusage or rendered nugatory. Only when an ambiguity exists in the language of the statute is it proper for a court to go beyond the statutory text to ascertain legislative intent. [Whitman v City of Burton, 493 Mich. 303, 311-312; 831 N.W.2d 223 (2013) (citations omitted).]

         Additionally, statutory language "cannot be read in a vacuum" and instead "must be read in context with the entire act, and the words and phrases used there must be assigned such meanings as are in harmony with the whole of the statute . . . ." GC Timmis & Co v Guardian Alarm Co, 468 Mich. 416, 421; 662 N.W.2d 710 (2003) (quotation marks and citation omitted; alteration in original).

         It is now well established that "the purpose of the OMA is to promote governmental accountability by facilitating public access to official decision making and to provide a means through which the general public may better understand issues and decisions of public concern." Kitchen v Ferndale City Council, 253 Mich.App. 115, 125; 654 N.W.2d 918 (2002), overruled on other grounds by Speicher, 497 Mich. 125, citing Booth Newspapers, Inc v Univ of Mich. Bd of Regents, 444 Mich. 211, 231; 507 N.W.2d 422 (1993). See also Manning v East Tawas, 234 Mich.App. 244, 250; 593 N.W.2d 649 (1999), overruled on other grounds by Speicher, 497 Mich. 125. "To further the OMA's legislative purposes, the Court of Appeals has historically interpreted the statute broadly, while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists." Booth Newspapers, Inc, 444 Mich. at 223.

         "Under the OMA, public bodies must conduct their meetings, make all of their decisions, and conduct their deliberations (when a quorum is present) at meetings open to the public." Speicher, 497 Mich. at 134-135, citing MCL 15.263. However, a public body may meet in a closed session[1] for certain enumerated purposes. MCL 15.268. Pertinent to this case, a public body may meet in a closed session "[t]o 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." MCL 15.268(e). This Court has concluded "that subsection 8(e) exists for the obvious purpose of allowing a public body to prepare for litigation without having to broadcast its trial or settlement strategy to the opposition along with the rest of the general public." Manning, 234 Mich.App. at 251.

         Certain procedural requirements must be met for a public body to commence a closed session.

A ⅔ roll call vote of members elected or appointed and serving is required to call a closed session, except for the closed sessions permitted under section 8(a), (b), (c), (g), (i), and (j). The roll call vote and the purpose or purposes for calling the closed session shall be entered into the minutes of the meeting at which the vote is taken. [MCL 15.267(1).]

Similarly, MCL 15.269 requires in part that "[e]ach public body shall keep minutes of each meeting showing . . . the purpose or purposes for which a closed session is held." MCL 15.269(1). Accordingly, a public body must "state on the record the purpose of the closed session before initiating the closed session." Herald Co, Inc. v Tax Tribunal, 258 Mich.App. 78, 86; 669 ...

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