Opinion
Docket No. 141663.
Decided November 18, 1992, at 9:05 A.M.
Clancey, Hansen, Chilman, Graybill Greenlee, P.C. (by Walter L. Hansen and Terrence E. Dean), for the plaintiff.
Cummings, McClorey, Davis Acho, P.C. (by Dennis P. Mikko), for the defendant.
Before: GRIFFIN, P.J., and WEAVER and McDONALD, JJ.
Plaintiff was the city manager of the City of Ishpeming. On October 4, 1989, all five members of the city council met privately with plaintiff, expressed their dissatisfaction with her work, and asked her to either resign or face termination at a subsequent council meeting. Plaintiff declined to resign and was terminated at a regular city council meeting on October 11, 1989.
Plaintiff subsequently brought a complaint alleging violations by defendants of the Open Meetings Act (OMA), MCL 15.261 et seq.; MSA 4.1800(11) et seq.
Plaintiff essentially alleged that the October 4, 1989, meeting violated the OMA because the public was not given notice of the meeting, MCL 15.264; MSA 4.1800(14), and plaintiff did not request a closed session, MCL 15.268(a); MSA 4.1800(18)(a). Plaintiff also asserted that the mayor, Angelo Bosio, who is a council member, had contravened the OMA by privately canvassing the council individually to establish a consensus. Plaintiff sought injunctive relief prohibiting defendants from continuing the conduct that led to the alleged violations of the OMA as well as actual attorney fees, MCL 15.271; MSA 4.1800(21) and MCL 15.273; MSA 4.1800(23).
In its opinion, the court noted that during oral arguments plaintiff's counsel indicated that plaintiff was not pursuing exemplary damages against the individual defendants, pursuant to MCL 15.273; MSA 4.1800(23), because there is no evidence that the individual defendants intentionally violated the Open Meetings Act.
Both parties brought motions for summary disposition, MCR 2.116(C)(10). The trial court granted defendants' motion and dismissed plaintiff's complaint. Plaintiff appeals. We reverse in part and remand.
Plaintiff first contends that the court erred in granting defendants summary disposition, arguing defendants' conduct violated the Open Meetings Act on its face.
Mayor Bosio stated in his deposition that before the October 4 meeting, he held individual discussions with all the council members regarding whether plaintiff should be retained as city manager. Bosio stated that before the meeting he felt there was a consensus among the members of the council to terminate plaintiff. Plaintiff argues that this one-on-one canvassing, which resulted in a private consensus by the council, contravened the OMA. We disagree.
The OMA requires that all decisions of a public body must be made at a meeting open to the public. MCL 15.263(2); MSA 4.1800(13)(2). In this case no decision was made by the body, instead Bosio was polling the individual members to determine their opinions. We find this conduct, an informal canvas by one member of a public body to find out where the votes would be on a particular issue, is not violative of the OMA.
We distinguish this situation from that in Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 192 Mich. App. 574; 481 N.W.2d 778 (1992), and Booth Newspapers, Inc v Wyoming City Council, 168 Mich. App. 459; 425 N.W.2d 695 (1988). In Booth Newspapers v U of M Bd of Regents, the defendant deliberately divided itself into subquorum groups to deliberate on public policy in an attempt to avoid the OMA. Similarly, in Booth Newspapers v Wyoming, over a two-day period, luncheon meetings were held, with neither meeting having a sufficient number of council members attending to constitute a quorum. The Court found the meetings were designed to avoid the OMA while the city council deliberated on public policy. Here, no attempt to avoid the OMA is indicated.
Plaintiff also asserts that the October 4, 1989, meeting violated the OMA. On that occasion, the entire city council met with plaintiff in a nonpublic session. Plaintiff was told that if she did not resign, she would be terminated at a subsequent open council meeting. Because the decision was made that plaintiff would not be allowed to continue as city manager, the nonpublic meeting violated MCL 15.263(1) and (2); MSA 4.1800(13)(1) and (2). The trial court should have granted summary disposition to plaintiff rather than defendants with regard to this issue.
Defendants argue that the council's actions fall under MCL 15.263(10); MSA 4.1800(13)(10) and, therefore, did not violate the OMA. This statute provides that the OMA "does not apply to a meeting which is a social or chance gathering or conference not designed to avoid this act." It is clear that the meeting on October 4, 1989, was neither a social or chance gathering nor a professional conference as contemplated by the statute. We find no merit to this argument.
Our resolution of this issue makes it unnecessary to address plaintiff's other assignments of error. We remand this case to the trial court for a summary disposition order in favor of plaintiff with respect to the issue whether the October 4 meeting violated the OMA. We do not retain jurisdiction.
Reversed in part and remanded.