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Detroit Free Press sues the University over alleged Open Meetings Act violations

By Shoham Geva, Summer Managing News Editor
Published July 13, 2014

In a lawsuit filed in state claims court Friday, The Detroit Free Press sued the University over violations of the Open Meetings Act in connection with meetings of the University’s Board of Regents, alleging that most decisions on University issues are made in private and votes during official meetings are just a formality.

The lawsuit relies primarily on a Free Press analysis of regents meetings between January 2013 and February of 2014 which found that out of the 116 votes held, the Regents held discussion on only 12 and a no vote by one or more Regents only occurred eight times.

“These numbers establish clearly that the regents do, in fact, routinely discuss the issues they must decide and do routinely make their decisions about the University of Michigan’s governance, all behind closed doors, out of the public’s view, without public accountability, and in violation of the (Open Meetings Act) and its Constitutional obligations,” the lawsuit read.

The Open Meetings Act is a 1976 state law dictating the conduct of the meetings of public bodies such as the regents. It mandates that all gatherings between members of those boards, given that they meet certain criteria to qualify as a meeting, must be open to the public with advance notice and have a record kept, among other provisions. The law defines a meeting as any situation where more than a simple majority of members of the board are present and discussion involves decision or discussion about official business or policy.

More generally, the state Constitution requires that all formal meetings of public bodies be open to the public. However, regents often meet informally to discuss issues, separate from the monthly meetings, which are considered formal. These meetings generally include two or three regents as well as University officials.

The lawsuit also cited two regents meetings held January 2013 and January 2014 in California and New York, which it said violated the Act because public notice was not provided, minutes were not taken, or the public and members of the press were not allowed to attend.

In an interview with the Free Press, Paul Anger, Free Press editor and publisher, said especially given the scope and scale of the University, he’s concerned about the lack of transparency to the public the analysis of meetings suggests.

“We don’t believe it’s acceptable that the public is essentially cut out of these meetings, considering the law and the bedrock idea that the public has a right to understand how such an important public institution conducts itself,” he said.

This isn’t the first time that the University’s meeting practices have come under scrutiny. In February, state Rep. Tom McMillin (R–Rochester Hills) held a hearing about the public’s concerns about the act during which Herschel Fink, a member of the Free Press’s legal team, said the University are “serial abusers of the Open Meetings Act.”

McMillin has since introduced two bills to amend the Act. The bills would make public officials who violate it intentionally criminally and civilly liable, as well as clarify that closed meetings are permissible only about current, ongoing legislation, not legislation that’s anticipated, as decided in a recent state Court of Appeals case.

Following University President-elect Mark Schlissel’s selection in January, concerns were also raised on secrecy specifically in the presidential search process. All Michigan public universities have been allowed to conduct presidential searches in private as of a 1999 Michigan Supreme Court decision.

Additionally, in 2010 University alum Robert Davis settled a case with the University under the Open Meetings Act over their failure to hold a public meeting while discussing an NCAA investigation of the University’s football program.

In an e-mail statement Sunday afternoon, University spokesman Rick Fitzgerald wrote that the University has not yet been served with the lawsuit and therefore could not comment.

In an interview with The Michigan Daily in February, Fitzgerald said the University believes that the regent’s meeting practices are both legal and effective.

“The process that the board operates under is well-established and well-grounded in the state law,” Fitzgerald said at the time. “This has been an effective way to work and we believe it is compliant with the Open Meetings Act.”

Among other public colleges in Michigan, Wayne State University also held a private presidential search process this year and Michigan State University also has conducted sessions of their governing board in private, according to The Free Press.

Correction appended: A previous version of this article incorrectly stated the dates of the Regents meetings in California and New York. Those meetings occurred in 2013 and 2014, respectively.