The Michigan Court of Appeals has made a ruling that will influence how school boards enter closed session meetings to discuss specific pending litigation. In Vermilya v Delta Coll Bd of Trs, ____ Mich App ___; ___ NW2d ___ (2018) (Docket No. 341229), the Delta College Board of Trustees passed a motion to enter a closed session “for the purpose of discussing specific pending litigation with legal counsel,” in line with a statutory exemption under the Open Meetings Act (“OMA”) that sets forth similar language. MCL 15.268(e). However, the Board failed to name the specific pending litigation (e.g. case name) it would be discussing. For that reason, Plaintiffs accused the Board of violating the OMA.
The Court of Appeals concluded that the Board had, in fact, violated the OMA. It noted that MCL 15.268(e) does not explicitly require a board to name the specific pending litigation that serves as the basis for the closed session, but it opined that the use of the word “specific” in the phrase “specific pending litigation” would be superfluous to the statute under the Board’s reading unless it intended to require naming the specific case. The court reasoned:
When a public body meets to discuss pending litigation, it will necessarily discuss specific cases. Therefore, if the Legislature did not intend for the public body to disclose the particular case or cases it would be discussing, there would be no reason for the phrase “specific pending litigation” to contain the word “specific,” as the word has no practical impact on the permissible substance of the public body’s discussion in a closed session.
The Court of Appeals also looked to other provisions of the OMA to support its conclusion. Under both MCL 15.267(1) and MCL 15.269(1), public bodies are required to maintain meeting minutes that record the “purpose or purposes” of the closed session. The court determined that, reading the OMA broadly to further the purpose government accountability, the Legislature intended for public bodies to name the specific litigation they aim to discuss in closed session. Consequently, the court established that a public body entering into closed session to discuss specific pending litigation must name the case it will be discussing.
The Court of Appeals’ decision may be surprising to school boards that have not historically identified to the public the name of specific pending litigation discussed in closed sessions. While the decision will be subject to appeal, it is currently binding law, and all school boards are strongly advised to adopt the practice. As always, we encourage school boards that have any questions regarding this OMA exemption after Vermilya, or any other aspect of the OMA, to contact legal counsel.