Michigan’s Independent Citizens Redistricting Commission meets via Zoom in 2020 | YouTube
Attorney General Dana Nessel issued a legal opinion Friday morning ruling that state boards must hold meetings in-person under the Open Meetings Act (OMA), but that individual members with disabilities must be allowed to participate remotely under the Americans with Disabilities Act (ADA).
According to the opinion, “it cannot be stated that, in all situations, an immune-compromised individual is a ‘qualified individual with a disability.’ But the existence of such a condition, or any other underlying condition, that makes an individual particularly susceptible to contracting an illness or disease such as COVID-19 if they were to attend a meeting in a public, physical space, could very well form the basis for a sufficient showing.”
An individual requesting accommodations would be required to be considered disabled under the ADA, and would have to submit proof in what Nessel described as “an interactive process between the requester and the public entity.”
Under the opinion, meetings must still be held primarily in person after an amendment to the Open Meetings Act that allowed them to meet fully virtually expired on Jan. 1.
“More importantly, where that option is not necessary to accommodate a qualified individual with a disability, the ADA does not require it and the OMA would not permit it. The Legislature’s clear intent behind the OMA was to have in-person meetings,” the opinion reads. “The Legislature, of course, could amend the OMA to permit fully virtual meetings. The potential benefits are many, including greater transparency, increased public involvement and participation, and the avoidance of singling out disabled board members who are participating remotely.”
However, under the amendments passed by the Legislature during the COVID-19 pandemic, members of the military are still allowed to participate in the meetings virtually — which Nessel’s opinion cited as a reason why allowing disabled individuals to participate virtually wouldn’t incur an undue burden or fundamentally alter the nature of the meeting, since governmental bodies are already required to accommodate virtual participation from military members.
Nessel’s legal opinion had been requested by Sens. Jeff Irwin (D-Ann Arbor) and Wayne Schmidt (R-Traverse City).
The opinion is only binding for state boards and agencies but can be used by local governments, and Nessel said in a Friday press conference that the legal opinions are “very persuasive in the courts,” noting that the ADA, which the opinion is based on, is federal law that applies to everyone.
“While this opinion will only be binding for state boards, it is my hope that local boards will use this guidance and ensure fair access to public meetings for those who require appropriate accommodations as we continue to navigate our way through the pandemic,” Nessel said. “Government participation should include everyone in our state who wants to serve.”
Senate Bill 854, introduced by Sen. Sean McCann (D-Kalamazoo), would codify amendments to the OMA allowing individuals with disabilities to participate in meetings remotely.
“I have heard from local government representatives in Kalamazoo County who are concerned that state law compelling in-person meetings has put members of public bodies and the general public into unsafe positions, or in some cases has prevented important business from being conducted effectively,” McCann told the Advance. “My bill says that if a local elected official or member of a citizen board has a health condition or disability that prevents them from attending a business meeting in person, but they are otherwise able to participate and vote, they should not be prevented from doing so. We have figured out how to do this remotely, we have the technology, and we know it can work.”
While Nessel’s legal opinion is only binding on state boards and agencies, McCann said his bill would bind local governments as well, making it “logical and important” to pass the legislation even with the opinion in place.
“I would say great, the AG’s opinion should stand, unless someone challenges it, which someone might,” McCann said. “And if we want to back that up with the full power of statutory law, we could adopt my bill as well.”
Rep. John Damoose (R-Harbor Springs) has also introduced House Bill 5689 to allow library boards of directors to conduct their meetings fully virtually.
Nessel said that while she does not have the authority to bind the Michigan Legislature, it could face a lawsuit if it doesn’t follow the guidance laid out in her legal opinion, since the ADA is federal law.
“The ADA applies to a public body, and that is any state or legislative governing body. I don’t know how you get around the fact that the state Legislature is a governing body,” Nessel said. “So, the ADA, now and always, has applied to the Michigan Legislature, and this isn’t new.”
McCann said “most of us reasonably think that there should be provisions for the Legislature to operate remotely in certain circumstances,” noting the recent cancellation of sessions due to concerns over COVID-19 and, separately, the weather.
“We’ll have to see if potential litigation or potential legislation drives that further or not.”
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