Appeals court rules public bodies must offer more info on certain closed sessions

Public bodies—city commissions, county boards, township and village councils—must stop being vague in their explanations to the public and press regarding certain information in connection with closed sessions for pending litigation.

According to Southern Michigan law firm Butzel Long, which works with the Michigan Press Association and its member newspapers like the Boyne City Gazette, a pair of decisions handed down last week will strengthen the public’s right to know.

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“[T]he Court of Appeals provided some guidance on an issue that we hear frequently about on the hotline,” says Butzel Long. “The Court of Appeals held that, when a public body is going into closed session to discuss specific pending litigation, the public body is required to identify the litigation.”

They added, “In addition, the court also indicated it was improper for the public body to simply say that they were accepting the recommendations of counsel—something that we see quite frequently.”

In its findings, the Court of Appeals found that public bodies:

  • Could say they have decided to authorize counsel to settle a specific case within certain parameters, without disclosing what those parameters are.
  • If the decision is to accept counsel’s recommendation on whether to accept a case-evaluation award, then the public body can say as much, without providing whether it is choosing to accept or decline the evaluation.

Additionally, the court said a public body could defer making a decision regarding whether to settle a particular case until settlement discussions have progressed to the point that counsel recommends the case be settled on specific terms.

“That more specific recommendation could be discussed in a closed session, with the actual ‘decision’ (i.e., vote) to settle the case on the terms recommended in the closed session made once the board returns to an open session,” says Butzel Long. “Defendant’s meeting minutes will show its decisions, but without disclosing its protected, closed-session deliberations on settlement strategy.”

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