Nessel: Ottawa County didn’t violate Open Meetings Act, but says reform is needed

Following what was described as an “extensive review,” Michigan Attorney General Dana Nessel said her office found no violations of the Open Meetings Act (OMA) by the Ottawa County Board of Commissioners based on their actions last month to fire both the county’s administrator and top health officer and eliminate its Diversity, Equity and Inclusion (DEI) Department.

However, Nessel did issue a letter admonishing certain board members for a lack of transparency and good governance, and for “violating the trust placed in them as elected officials by their constituents.”

Nessel further said she would be proposing updates to the OMA that would close what she believes are weaknesses in the law.

“The OMA is intended to protect the right of all Michigan residents to know what goes on in government by shedding light on the official acts of public bodies and enhancing responsible decision making, and thus promoting government accountability,”Nessel told reporters. “But it’s not without fault. So these changes would firstly require a public body to include a meeting agenda along with notice for the public meeting at least 48 hours in advance of the holding of the meeting. And it would limit the ability to modify that agenda during a meeting except under exigent circumstances.”

Nessel said she is also proposing to amend the definition of the term ‘public official’ to include a person who has been elected or appointed to public office, even if they have yet to actually take their oath of office.

Both of those issues came into play at the controversial Jan. 3 meeting of the board which began with a flurry of hastily added motions, resulting in the firings of both County Administrator John Shay and Administrative Health Officer Adeline Hambley, the closing of the county’s DEI Department and changing of Ottawa County’s vision statement from “Where you belong” to “Where freedom rings.”

Most in the audience were surprised by the moves, which did not appear on the agenda for the meeting, the first one featuring seven far-right Republicans under the Ottawa Impact banner who successfully ousted GOP incumbents on the West Michigan board they criticized for not being sufficiently right-wing.

That led to multiple complaints that the new members “held clandestine meetings, created a secret agenda, and carried out extensive actions outside of the public’s view,” thus short-circuiting public debate on the topics.

Nessel said it was clear that those decisions were not made during the course of the meeting, with full deliberation before the public, but instead were made in secret between some of the board members. 

While the actions did not violate the letter of the law, she said they certainly violated its spirit.

“Full participation in the democratic process is good governance, right?” Nessel said. “And as elected officials across the state, we may come from different regions and different backgrounds and different political beliefs, but we really should seek to serve the greater good of the residents of this state, no matter who we are. And we should seek to actively engage the public in the work of the government to build public trust through accountability and to improve our effectiveness through public participation and our decision making. So the notion of government transparency is just part of our national story and so it’s important that the power that government officials have, not be abused.”

Nessel further said she would be evaluating whether other laws governing local units of government should be amended to require additional transparency, ethical conduct and accountability to citizens.

“If it’s not illegal because of a technicality, certainly I think many of us find it to be nefarious in nature and unethical,” she said. “I think what we’ve learned also from some of the actions of the Ottawa County Board of Commissioners is that elections have consequences. I will say that many of the things that that board did, they ran on that platform. And I don’t know if people in Ottawa County, either they approved of those measures or the policies that these members of Ottawa Impact have made part of their platform. Either they approved of it or they weren’t paying attention.”

Despite having no basis to bring criminal charges against the Board, Nessel said those Ottawa County citizens with ongoing concerns about the Board’s conduct can take several different actions including filing a lawsuit under the OMA to either challenge the validity of a decision made in violation of the act or compel compliance with the act, and if successful, recover court costs and attorney fees.

She also noted that the Michigan Election Code provides a process for the recall of elected officials, including county commissioners, for conduct during their current term of office.

As to the proposed OMA amendments, Nessel said that if people are seeking to be elected, they should know that as soon as they become elected, there are going to be certain responsibilities they have. 

“And one of those responsibilities is not to use your position, as someone who’s coming into office, to avoid, OMA or FOIA [Freedom of Information Act]. I don’t know that that’s too much of a burden to put on people when they’ve already made the effort to run for these offices and to ask for people’s votes, and people have voted for them.”