[Michlib-l] Virtual Board Meetings after March 31, 2021

[Membiela, Clare (MDE)]

Hello!

In the Director's meeting today, a question came up with regards to information some libraries had received indicating that the ability to hold a virtual public meeting (like a board meeting) was dependent on only a LOCAL emergency, disaster or public health order.

I reviewed the language of the statute, as well as the original house and senate analyses (which are often used as guidance by courts and attorneys to determine intent of statutory language), and the information I found suggests that the legislature intends for public meetings to be able to hold virtual meetings after March 31, 2021 under the following circumstances:

MCL 15.263a(1)(b<http://legislature.mi.gov/doc.aspx?mcl-15-263a>)
On and after March 31, 2021 through December 31, 2021, only those circumstances requiring accommodation of members absent for the reasons described in section 3(2). For the purpose of permitting an electronic meeting due to a local state of emergency or state of disaster, this subdivision applies only as follows:
  (i) To permit the electronic attendance of a member of the public body who resides in the affected area.
  (ii) To permit the electronic meeting of a public body that usually holds its meetings in the affected area.
  (c) After December 31, 2021, only in the circumstances requiring accommodation of members absent due to military duty as described in section 3(2).

The YELLOW highlighted area permits virtual public meetings to occur under ANY of the circumstances listed in MCL 15.263(2):

MCL 15.263 (2<http://legislature.mi.gov/doc.aspx?mcl-15-263>):
All decisions of a public body must be made at a meeting open to the public. For purposes of any meeting subject to this section, except a meeting of any state legislative body at which a formal vote is taken, the public body shall, subject to section 3a, establish the following procedures to accommodate the absence of any member of the public body due to military duty, a medical condition, or a statewide or local state of emergency or state of disaster declared pursuant to law or charter or local ordinance by the governor or a local official, governing body, or chief administrative officer that would risk the personal health or safety of members of the public or the public body if the meeting were held in person

The GREEN highlighted area indicates that IF an order,disaster declaration , public health directive, etc.,  is issued by a LOCAL authority (as oppose to a State wide order), then the board can only meet virtually if they normally have their meetings within the geographic area covered by that local order. Same if an order covers a geographic area where a board member lives-  only that board member can attend virtually.

The intent of this language is to PERMIT statewide virtual meetings if there is a statewide order, BUT if there is not a state wide order, and there is a LOCAL order (maybe as a result of a local health outbreak, or a local natural disaster), ONLY the public boards and/or public officials/board members in that geographic area can meet or attend virtually.

The House<https://www.legislature.mi.gov/documents/2019-2020/billanalysis/House/pdf/2019-HLA-1246-A043CA80.pdf> and Senate<https://www.legislature.mi.gov/documents/2019-2020/billanalysis/Senate/pdf/2019-SFA-1246-G.pdf> analyses of this legislation as it was in the legislature further supports this:

The House Analysis<https://www.legislature.mi.gov/documents/2019-2020/billanalysis/House/pdf/2019-HLA-1246-A043CA80.pdf>: (Senate Bill 1246 is the most recent amendment that added the March date)

Under the act, a meeting of a public body may be held electronically, in whole or in part, only under the following circumstances:
* Through December 31, 2020, any circumstances.
* Beginning January 1, 2021, through December 31, 2021, only those circumstances requiring accommodation of members absent due to military duty, a medical condition, or a statewide or local state of emergency or state of disaster. Also, for an electronic meeting due to a local state of emergency or of disaster, these provisions would apply only to allow the electronic attendance of a member of the public body who lives in the affected area or to allow the electronic meeting of a public body that usually holds its meetings in the affected area.
* Beginning January 1, 2022, only circumstances requiring accommodation of members absent due to military duty.

Senate Bill 1246 would revise the above time frames, so that the first provision would apply through March 30, 2021, and the second provision would apply beginning March 31, 2021. The other dates would not be changed.


The Senate Analysis<https://www.legislature.mi.gov/documents/2019-2020/billanalysis/Senate/pdf/2019-SFA-1246-G.pdf>:

Under Section 3a, a meeting of a public body held, in whole or in part, electronically by telephonic or video conferencing in compliance with Section 3a and, except as otherwise required in Section 3a, all of the provisions of the Act applicable to a nonelectronic meeting, is permitted by the Act in the following circumstances:

--Before January 1, 2021, and retroactive to March 18, 2020, any circumstances, including any of the circumstances requiring accommodation of members absent because of military duty, a medical condition, or a statewide or local state of emergency or state of disaster.
-- On and after January 1, 2021, through December 31, 2021, only those circumstances requiring accommodation of members absent because of military duty, a medical condition, or a statewide or local state of emergency or state of disaster, and only under the conditions specified in the Act.
-- After December 31, 2021, only in the circumstances requiring accommodation of members absent because of military duty.

Under the bill, where Act refers to January 1, 2021, the bill would refer to March 31, 2021.

Therefore, if a statewide MDHHS order restricting gatherings, etc. is in place on March 31,2021, it would seem that libraries CAN hold virtual meetings as long as that order is in place until December 31, 2021.
AND
If a local order is in place (and NOT a statewide order), then ONLY that local library board and/or members can attend virtually.

I hope this is helpful! I encourage libraries to review this language with their attorneys if they have questions regarding whether they can convene a virtual meeting after March 31, 2021.

Thanks!
Clare

Clare D. Membiela, MLS, J.D.
Library Law Consultant
Library of Michigan
MembielaC at michigan.gov<mailto:MembielaC at michigan.gov>
517-335-8132

The research and resources above are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.
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