The Charlevoix County Prosecuting Attorney has now weighed in on the Village of Boyne Falls’ governance with a four-page letter outlining his and local law enforcement’s investigation findings.
The letter, dated Friday April 27, came in response to concerns over how the Village of Boyne Falls is conducting its business—specifically the handling of the village council’s April 10 meeting where it apparently violated the Michigan Open Meetings Act.
Following is Charlevoix County Prosecuting Attorney Allen Telgenhof’s letter in its entirety:
Dear Mr. Carson and other members of the village council,
A complaint has been made alleging that you violated the Open Meetings Act, MCL 15.261 et seq. at your council meeting held on April 10, 2018.
The Charlevoix County Sheriff’s Office has investigated the matter and provided me with a report.
This letter is to review the information and to summarize my findings.
You are all aware of the existence of the Open Meetings Act. It requires all meetings of a public body to be open to the public and in a place available to the general public. All decisions of a public body must be made at a meeting open to the public. MCL 15.263(1), (2).
There are a limited number of times when a public body may meet in closed session. These are outlined in MCL 15.268. A public official who intentionally violates the Open Meetings Act is guilty of a misdemeanor punishable by a fine of not more than S1,000.00. MCL 15.272(1).
Prior to your April 10, 2018 meeting, I had written a letter to you regarding alleged criminal charges against one of your employees. The village was the alleged victim and my letter was to seek input from the council on the issues presented. The letter was clear that it was not your decision whether to prosecute, but I was unsure as to how the council members wished to proceed. I had only been provided with information regarding the feelings of, essentially, the accused and the accuser.
I sent the letter after consulting with your village attorney as to the best way to obtain input from the village council.
The morning after the meeting, Mr. Carson telephoned me and summarized what each council member had said regarding their feelings on whether or not the case should be prosecuted. That same day I was contacted by a citizen who said they believed a violation of the Open Meetings Act had occurred. I told them if they wanted the matter pursued, they should contact law enforcement and notify them.
I understand from the report I received from the Sheriff’s Office that a complaint was made on April 12, 2018. Deputy Jake Wasylewski and Detective Ben Speigl conducted an investigation interviewing witnesses, obtaining and reviewing documents.
Although the witness accounts vary to some degree, there is largely a consensus as to what transpired. According to the closed session minutes, (*1) Mr. Carson wanted council to go into a closed session for a personnel matter, specifically to discuss the letter council received from me regarding the potential charges against Ms. Debra Taylor. (*2)
The minutes do not reflect a vote on moving into closed session. MCL 15.267(1) requires a 2/3 roll call vote to go into closed session with few exceptions, none of which apply here.
Regardless, the public was excused, and a closed session was conducted. All council members confirm that the primary discussion in closed session was the letter and what input to give to the Prosecuting Attorney’s Office. Each member spoke and gave their opinion as to what they would like to see happen. These opinions are set forth in the closed session minutes and were conveyed to me by Mr. Carson.
It appears that there was also discussion as to whether Ms. Taylor’s employment should be terminated. One member believes that a vote was taken on this issue and that the vote was at the request of Mr. Kondrat. Mr. Kondrat, for his part, believes that a vote was taken on whether or not the village wished to pursue charges.
No other members share this belief. Regardless, if there was a vote on whether to fire Ms. Taylor, it failed by a 3-1 margin and thus no action was taken; the status quo remained intact and therefore, there is no act to nullify or to
“ re-enact” pursuant to MCL 15.270(5).
The public, however, should have had the right to weigh in on such a vote if one was to take place. I will address this further in my conclusions below.
Members said that other related issues were discussed briefly, related to Ms. Taylor and Mr. Kondrat, however, two members stated that when topics that were not the subject of the closed session were brought up, it was by Mr. Kondrat and Mr. Carson instructed him that was not appropriate.
While a public body may meet in a closed session to hear complaints or charges brought against an employee, it may only do so when the named person, in this case, Ms. Taylor, requests a closed hearing. MCL 15.268(a).
I do believe that my letter to the village constituted a discussion of complaints and charges against Ms. Taylor which would justify a closed session hearing, however, it does not appear from the minutes or the witness statements that Ms. Taylor requested one. (*3)
It also does not appear that a roll call vote was taken with a 2/3 majority voting to meet in closed session.
Once in closed session, there is conflicting testimony as to whether any votes were taken.
No votes should have been taken as all decisions of a public body shall be made at a meeting open to the public. MCL 15.263(2). If one of these alleged votes resulted in a public action, for example, had the council voted to fire Ms. Taylor in closed session, that act would be void and the council would be required to re-consider the matter in an open meeting.
It certainly appears that the primary focus of the closed session was to discuss complaints and charges against Ms. Taylor. Any other topics were either briefly discussed or shut down by Mr. Carson as being inappropriate in a closed session.
Therefore, I do believe there was a violation of the Open Meetings Act as the record does not show a request by Ms. Taylor for a closed session nor does it show a 2/3 vote in favor of a closed session.
The discussions had outside the public purview did concern a personnel matter and therefore, one could consider the violation technical in nature. Of more importance to me is whether the violation was intentional, and if so, which public official or officials intentionally violated the Open Meetings Act.
I do not find the violation to be intentional.
I believe that Mr. Carson correctly realized that complaints against an employee could be discussed in a closed session and perhaps prior to the meeting Ms. Taylor made such a request to him. Regardless, it needed to be a part of the meeting and the record that Ms. Taylor did so.
I believe the failure to conduct a roll call vote and obtain a 2/3 vote for closed session was an
oversight and not willful.
No decisions were made in the closed session, with the possible exception of retaining Ms. Taylor which I will discuss below in my recommendations. The input given regarding the criminal prosecution was not a decision as contemplated by MCL 15.263(2) because, as my letter made clear, the village does not have the authority to make such a decision.
I believe that there are a number of things that should be done to rectify this situation and to ensure that it does not happen again:
1) The closed session minutes should be made public. Though the discussion should have been in front of the public, this will at least allow the public to know what was discussed and what each member stated
2) If a member wishes to pursue termination of Ms. Taylor, the member should utilize the council’s rules or Robert’s Rules of Order in order to bring this matter to the council in a public meeting.
3) The council should consider bringing in a mediator to help the village work through issues that are dividing it and distracting from the work of the village. While this is not an Open Meetings Act issue, my review of this situation and the underlying situation leads me to the conclusion that there is a severe lack of communication and mutual respect in
the village. If not addressed, this will lead to ongoing problems.
4) Perhaps most importantly, I strongly recommend that the council undergo training on the Open Meetings Act and Robert’s Rules of Order. (*4)
Though I do not believe the actions here were intentional, warranting criminal prosecution, further violations of the Open Meetings Act may be seen differently, especially since the village is now on notice of the Act’s requirements.
If the village does not follow through with training and again violates the Act, it may appear that the council is simply ignoring the Act and burying its head in the sand.
To be clear, I do not believe that presently to be the case.
I will consider this matter closed.
If you wish to follow-up with me with respect to any aspect of this letter or my prior letter, please do not hesitate to contact me.
*1. Although closed session minutes are not to be available to the public under MCL 15.267(2), because of my conclusions later set forth, I do not believe this statute applies.
*2. Mr. Carson also told police he was concerned that he was unable to keep order in the meeting. This is not a legal basis for going into closed session. A person may be excluded from a public meeting for a breach of peace committed at the meeting pursuant to MCL 15.263(6) or Mr. Carson might have called for a recess to allow tempers to cool and voices to calm, if need be.
*3. Detective Speigl and I were informed in a phone conversation with village counsel that perhaps Ms. Taylor had made this request to Mr. Carson prior to the meeting; however, this should have been done in public and noted in the meeting minutes.
*4. If the village does not already have a rule providing that their meetings are conducted using Robert’s Rules of Order, one should be immediately adopted.