Author(s): John J. Gillooly, Sarah Robertson

From the Editor

by John J. Gillooly

The Open Meetings Act
Each and every week we receive several questions about the Open Meetings Act. Several months ago, we were even asked by a local circuit court judge to put on a seminar for a mid-Michigan city council that ended up being televised for all to see.
If you missed our Lansing seminar earlier this week, here are some key points to remember about the Open Meetings Act:

  • ‚Enacted in the wake of Watergate to promote full disclosure of governmental affairs;
  • All meetings of a public body shall be open to the public;
  • All meetings must be held in a place available to the general public;
  • Social or chance gatherings not designed to avoid the Act are excluded from the coverage of the Act;
  • Public bodies with a regular meeting schedule must post the schedule of their meetings for the calendar year within 10 days of their first meeting in that year;
  • Any change in the meeting schedule must be posted within three (3) days after the meeting where the change is made;
  • Special meeting notices must be posted at least eighteen (18) hours prior to the meeting;
  • Public bodies may establish rules to ensure the orderly conduct of meetings including setting time limits on comments from the general audience;
  • A person may not be excluded from a public meeting except for a breach of the peace;
  • Minutes shall be kept of each meeting whether the meeting is open or closed;
  • A closed session is permitted by a two-thirds majority roll call vote to consider any of the following:
    • the purchase or lease of real property;
    • to consult with municipal attorneys regarding trial or settlement strategy; and
    • to review the specific contents of an application for employment or appointment to a public office when the candidate requests that the application remain confidential.

With regard to the last item, please note that all interviews by a public body for employment or appointment to a public office shall be held in an open meeting.

If you have any questions on the Open Meetings Act or any topic involving municipal law, please call me directly at 313.446.5501.
Happy Spring!

MUNICIPAL LAW UPDATE

by Sarah Robertson

Qualified Immunity
Plaintiff-decedent, killed in a motor vehicle accident, filed suit against the defendant police officer for her gross negligence in failing to follow departmental policy while directing traffic. The Court of Appeals found that defendant’s actions, or inactions, were not “the one most immediate, efficient, and direct cause” of the accident. Instead, the road conditions were the proximate cause where plaintiff’s expert averred that but for the ice conditions, plaintiff-decedent would have been able to safely stop his vehicle. Hedglen v Kokesh (Unpub, COA No. 270164, 10/24/06).

Plaintiff-decedent, a high school student, died after collapsing in the cafeteria and filed suit against the school and several individuals claiming they were grossly negligent in their response to her condition. The school was entitled to absolute immunity because it had been engaged as a governmental entity in the exercise of a governmental function. However, there was a question of fact as to the individual defendants’ gross negligence and proximate cause. In this case, reasonable minds could conclude that defendants willfully disregarded precautions or measures to attend to safety and singularly disregarded substantial risks. Defendants relied upon the unprofessional opinion of two defendants that plaintiff was suffering a seizure rather than calling 911. Moreover, there was admissible expert testimony that defendants’ alleged gross negligence actually caused plaintiff’s death, along with conflicting evidence as to how plaintiff actually died. Thompson v Rochester Comm Schools (Unpub, COA No. 269738, 10/26/06).

Plaintiff’s twin brother committed a felony in Livonia, evaded Livonia police, entered Detroit and was arrested by Detroit police officers. Detroit informed Livonia of the arrest of plaintiff’s twin brother and Livonia then arrested plaintiff, ignored his protestations that it was his brother they wanted, and held plaintiff in jail pending trial for seven months until his claim of mistaken identity was confirmed. Plaintiff filed suit against Livonia and Detroit police officers alleging gross negligence. The Court of Appeals found that the defendants’ mistake was reasonable at the point of arrest and that even a few days of delay before investigating plaintiff’s claim of mistaken identity might have been reasonable. The Court could not agree that holding plaintiff without investigating for seven months was even remotely reasonable, however, and therefore, defendants were not entitled to summary disposition on the ground of immunity. Kendricks v Rehfield, 270 Mich App 679; 716 NW2d 623 (2006).

42 USC §1983
‚Plaintiff claimed a violation of his due process rights under the 14th Amendment alleging that individual police officers, firefighters and EMTs unreasonably cut off his access to medical care without providing an adequate alternative and knew, or should have known, that he needed medical care for a drug overdose. The officers were called to a scene where one person was dead, and plaintiff was passed out. The police secured the area as a crime scene and found Oxycontin on the premises. The EMTs did not treat plaintiff or transport him to a medical facility and, at some point, plaintiff died. The district court found that the officers were not entitled to qualified immunity. The 6th Circuit Court of Appeals found that the officers at no time had physical restraint over plaintiff and did not direct any actions toward him so that the custody exception to qualified immunity did not apply.

Further, the officers did not commit a constitutional violation by securing the apartment and leaving plaintiff on the couch where there was no evidence that a private rescue was attempted so that the state-created danger exception also did not apply. Therefore, the 6th Circuit found the officers to be entitled to qualified immunity. Carver v City of Cincinnati (6th Cir No. 05-00427, 1/18/07).

‚Plaintiff-decedent died during his arrest by two Benton Township police officers. His estate sued the officers alleging that his death was caused by the use of excessive force. The district court granted summary judgment in favor of both officers finding that there had been no showing that plaintiff had a clearly established right to freedom from “the use of the vascular neck restraint” or that the officers’ use of what is commonly called a “choke hold” was objectively unreasonable. Plaintiff appealed only the ruling regarding one officer’s liability. The 6th Circuit Court of Appeals found that material disputes of fact concerning the reasonableness of that officer’s conduct did exist and so reversed the grant of summary judgment in his favor. The 6th Circuit found that the position of on the force continuum of the neck restraint, and the evidence that plaintiff never had possession of the officer’s gun and never threatened any one with it, left the possibility that reasonable minds might find the use of the neck restraint to be unreasonable. Moreover, the officer knew when he came to plaintiff’s residence that plaintiff was experiencing some sort of mental or emotional difficulty. Accordingly, the use of a neck restraint violated plaintiff’s well-established right to be free from gratuitous violence during arrest. Griffith v Coburn (6th Cir No. 05-2720, 1/10/07).

Condemnation
Plaintiff owned certain rental property in the City of Pontiac and filed suit after his property was condemned pursuant to certain provisions of state statute and city ordinance. Defendant argued that the trial court was without jurisdiction to hear plaintiff’s claims because plaintiff had failed to exhaust his administrative remedies. The Court of Appeals found that plaintiff had failed to exhaust his administrative remedies regarding his “as applied” challenges to the statute and ordinances. However, with respect to the portions of plaintiff’s complaint that sought to attack the general constitutionality of defendant’s condemnation ordinances, plaintiff was not required to exhaust his administrative remedies. Where plaintiff was required to exhaust his administrative remedies as to his “as applied” challenges, but such remedies would not have provided meaningful recourse, plaintiff’s only effective avenue of relief was the circuit court and the circuit court did not err in denying defendant’s motion for summary disposition. Nelson v City of Pontiac (Unpub, COA No. 269536, 2/1/07).

NREPA
Plaintiff argued that defendant’s ordinances conflicted with the NREPA because they improperly shifted the burden of proof regarding a determination of essentiality and provided for an environmental features setback. The trial court disagreed and granted summary disposition in favor of defendant.

The Court of Appeals found that the ordinances and statute are not in conflict because it is the responsibility of the municipality under both the ordinance and the statute to make a determination of essentiality. Moreover, there is no provision of the NREPA that precludes defendants from implementing a setback provision. The Court further found that plaintiffs’ claim that defendant’s ordinance violated their right to substantive due process was without merit where the property was zoned for residential use and plaintiffs were permitted to use the property for a residential purpose. Finally, the Court found that defendant had not committed a taking where defendant did not physically invade plaintiff’s land but merely restricted the manner and extent of its development. Divergilio v Charter Township of West Bloomfield (Unpub, COA No. 261766, 11/2/06).

Defamation/Tortious Interference with Contract
Plaintiff, an employee of defendant school district, took a medical leave of absence in early 2004 and applied for disability benefits through a privately funded policy she held with Colonial Life. Plaintiff asked defendant to complete a form verifying that she was on a leave of absence and that her medical condition required her to remain homebound. Defendant had received information that plaintiff was working in real estate while on leave and hired a private investigator who confirmed this fact.

Defendant informed Colonial Life of plaintiff’s activities and Colonial Life rescinded plaintiff’s benefit payments. Plaintiff sued defendant. The Court of Appeals found that the operation of a school is a governmental function and conducting surveillance was related to the general activity of supervising employees to insure that they are complying with defendant’s policies. Therefore, the surveillance was related to the discharge of a governmental function. Moreover, plaintiff expressly involved defendant when she asked it to sign Colonial Life paperwork verifying pertinent information related to her medical leave. Defendant’s governmental function encompassed providing accurate information regarding its employees’ work-related conduct to parties having a legitimate interest in obtaining the information. Finally, the Court found that, although defendant did not raise the issue of governmental immunity in its affirmative defenses, it was not required to do so. “Governmental immunity is not an affirmative defense but rather is a characteristic of government.” Therefore, a party bringing an action against a governmental unit must plead in avoidance of governmental immunity. Hall v Pontiac School District (Unpub, COA No. 269981, 10/19/06).