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COVID Impacts on Electronic Public Meetings – Emergency Order and Open Meetings Act Updates

December 23, 2020

MDHHS Updated Emergency Order

The Michigan Department of Health and Human Services (MDHHS) issued an updated emergency order that took effect December 21, 2020. The new order allows for the reopening of lower risk entertainment and recreational facilities while maintaining the prohibition on all other non-residential indoor gatherings. It does not provide any exception that would allow public bodies to host indoor, in-person meetings. Instead, public bodies should host any meeting scheduled for between now and January 15, 2021 electronically, such as by Zoom or Microsoft Teams. The meeting platform must allow for two-way communications between the members of the public and the public body. These electronic meetings will be lawful under the Open Meetings Act under the amendment described below.

Open Meetings Act

Additionally, on December 22, 2020, Governor Whitmer signed into law Senate Bill 1246, which extends and updates certain Open Meetings Act regulations previously adopted in October (in PA 228 of 2020) permitting electronic meetings of public bodies. Specifically, the new revisions allow public bodies to conduct meetings electronically, in whole or in part, for any reason through March 31, 2021, extended from December 31, 2020. Beginning March 31, 2021 through December 31, 2021, public bodies may only meet electronically in those circumstances requiring accommodation of members absent due to (1) military duty, (2) a medical condition, or (3) a statewide or local state of emergency or state of disaster. The regulations for electronic meetings after December 31, 2021 remain unchanged (only allowed to accommodate members absent due to military duty).

With respect to meetings held due to circumstance (3) above, the Act adds states of disaster or emergency declared pursuant to local ordinance (in addition to those declared under law or charter) as a permitted circumstance to hold a meeting electronically. The Act also adds "chief administrative officer" as a person who may declare a local state of emergency or state of disaster in addition to a local official or governing body.

Finally, the act imposes regulations on meetings held in-person before April 1, 2021 requiring (1) adherence to social distancing and mitigation measures recommended by the CDC to prevent the spread of COVID-19, including the measure that an individual remain at least six feet away from anyone from outside the individual's household and (2) adoption of heightened standards of facility cleaning and disinfecting as well as protocols to clean and disinfect in the event of a positive COVID-19 case in the public body's meeting place.

The other requirements the legislature added to the Open Meetings Act under PA 228 of 2020 remain unchanged.

Conducting an Electronic Meeting

Each member of the public body attending the meeting remotely must make a public announcement at the outset of the meeting, to be included in the minutes, that he or she is doing so. A member attending remotely for a reason other than military duty must further specify the county, city, township, or village and state where he or she is physically located. A public body with an official internet presence must post advance notice of an electronic meeting on its website where the public can access it, either on or linked from its homepage, at least 18 hours before the start of the meeting. If an electronic meeting has an agenda, a public body with an official internet presence that includes regular updates of posted meeting agendas or minutes must make the agenda available to the public on the internet at least two hours before the start of the meeting.

If you have any questions or need assistance adopting/updating your community's remote participation procedures pursuant to these new amendments, please contact a Foster Swift municipal attorney.

  

  

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Foster Swift Collins & Smith, PC E-Newsletters are intended for general information for our clients and friends. This newsletter highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how this information applies to any specific situation.

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