HomeMy WebLinkAboutBoard of Ethics Packet 02-28-95 MINUTES LANSING CITY BOARD OF ETHICS
REGULAR MEETING
FEBRUARY 28, 1995 - 5:00 P.M.
9TH FLOOR MAYOR'S CONFERENCE ROOM, LANSING CITY HALL
The meeting was called to order at 5 :15 P.M. in the. Mayor' s Conference
Room, 9th Floor, City Hall, Lansing, Michigan.
BOARD MEMBERS PRESENT: John Mertz, Chairman
Joyce Meissner, Vice-Chairwoman
Don Cook, Public Member
Dr. Georgia Johnson, Public Member
Orjiakor Isiogu, Public Member
David Lehmann, Public Member
BOARD MEMBERS ABSENT: Joan Trezise, Public Member (excused)
A QUORUM WAS PRESENT
OTHERS PRESENT: James Smiertka, City Attorney
Marilynn Slade, City Clerk
Deborah K. Miner, Recording Secretary
Jerome Boles, Chief of Police
Mary Ellen Anastor, Purchasing Agent
Donald Knechtel, LPD Officer
Dennis Burger, COPS
Tim Lewis [500 S. Pine]
Jodi Upton, State Journal
Margaret Herp, Retired City of Lansing
Russell J. Smith [403 Rosadell]
Stuart Shafer, Representing Jan Lazar
NEXT MEETING DATE: Regular meeting; March 28, 1995 .
Regular meetings to be held in the Mayor' s Conference .Room
pending a meeting of the entire 11 member Board and the designation
of a new meeting place.
APPROVAL OF AGENDA:
It was the consensus of the Board that the Agenda be approved
with the following changes noted:
Addition of an updated Board Roster under Correspondence received
and sent since the last meeting;
Addition of a request for opinion from Jack Nelson, Manager of
the Building Office as item #4 under New Business . This item will be
scheduled as item #1 under New Business at the March 28, 1995 meeting;
Addition of a letter from John M. Donohue to Tom Downs under
Correspondence received and sent since the last meeting;
Addition of a letter from City Clerk Slade to Stuart Shafer under
Correspondence received and sent since the last meeting;
Corrected spelling of the name of Public Member Orjiakor Isiogu.
SECRETARY'S REPORT:
Approval of Minutes : Motion by Vice Chairwoman Meissner to
approve the minutes of the January 24, 1995 meeting as submitted.
MOTION CARRIED 6/0
City Clerk Slade introduced the three newly appointed Public
Members .
Correspondence Received and sent since last meeting
1 . Letter dated January 31, 1995 from Stuart Shafer, Attorney
for Jan Lazar;, Scheduled for Executive Closed Session under New
Business
2 . Statement from Tom Downs for legal services for dates of
1/1/95 - 1/31/95; Payment Authorized by Motion of Public Member Cook
and affirmative vote of the Board
3 . Copy of a letter dated 2/6/95 from Tom Downs to City Attorney
Smiertka; Pending
4 . Copy of a letter dated 2/7/95 from Tom Downs to John M.
Donohue; Received and filed.
5 . Copy of letters sent to Dennis Gilliland and Alan Sonnanstine
by Secretary Slade (conveying copies of Duarte opinion to them) ;
Received and filed.
6 . Revisions to IRS Section 415 Limitations received from
Council agenda of 2/13/95; Pending.
7 . City Attorney' s Opinion #95-02 regarding definition of
default as included in City Charter (referral to the Board from City
Council agenda) ; Pending.
CITY ATTORNEY'S REPORT:
City Attorney Smiertka requested a report from the Board as to
a time line for the completion of it' s investigation of the Early
Retirement plan. He needs this information to assist him with
scheduling.
CHAIR'S REPORT:
Chairman Mertz welcomed the three new Public Members and said
that they are all eminently qualified to serve on the Board of Ethics .
He is particularly happy to have another Lawyer on the Board. He
reviewed the amendment to the City Charter which mandated the
appointment of 8 new members to the Board. He explained the purpose
and charge of the Board, as a Review Board, under the provisions of
the Charter Amendment . He urged the new members to read all the
material that has been amassed for them. Secretary Slade has
distributed a notebook of historical information about the Board
containing a copy of the Charter, Ethics Board Opinions #1-21, Ethics
Board Charter Amendment, Ethics Board Minutes 1993-1994, the Open
Meetings Act, Chapter 290 of the Code of Ordinances, Ethics Board
Rules of Procedure, 1995 Meeting Schedule, and the Membership Roster.
The Board, he explained, functions by consensus opinion as much as
possible .
PUBLIC COMMENT
There were no public comments at this time.
OLD BUSINESS: Knechtel Disclosure; Mr. Knechtel addressed the Board
with information about the two companies with that he is involved with
that wish to do business with the City of Lansing; Custom Ordered
Police Supplies, Inc. (COPS) , and K.B. Equipment & Service. In
response to questioning by Board Members, Mr. Knechtel revealed: He
does not currently do business with the City through either of these
two companies . He owns 50% interest in both companies . K.B.
Equipment markets products to the construction industry and COPS
markets products to Police and Fire related companies such as frame
lighting for police cars and bullet proof vests . He has filed these
affidavits because he is a full time city employee and would like the
Board' s permission to do business with the City through these two
companies, utilizing the City' s bidding procedures and formal quote
processes . He currently owns interest in other companies, however,
these two are the only companies which propose to do business with the
City of Lansing. He does not serve on any committees within the
Police Department which would put him in a decision making position
as to the procurement of supplies. The other 50% interest in these
two companies is owned by Mr. Dennis Burger who is present at
tonight' s meeting. Everything that these companies market is
manufactured by other companies and is available through a number of
other distributors in the state. They ask to be allowed to make
formal quotes on bids let by the City on contracts for goods that are
available through other companies. They would not be in a position
of being a sole source provider because all of their products are
available elsewhere . The City operates under a legitimate sealed bid
process that would not give him an advantage or influence on the
awarding of the bid, it would be based on the lowest quote . The only
way he would know about a contract for the City, or the Police
Department, is when someone from the Purchasing Department published
a notice of bid or called one of his companies and requested a bid.
He is no longer associated with Federal Signal; and, Patches Plus is
now K.B . Equipment and Custom Ordered Police Supplies . He has no
personal relationship with anyone in the Purchasing Department.
Neither of these two companies is currently doing business with the
Police Department, nor the Fire Department . On June 13 , 1991, in
response to an affidavit he filed, he received an opinion from then
City Attorney Knot that Patches Plus could do business with the City.
He was a 50% owner at that time. He proposes that the basis of that
opinion be applied to this situation, because the only change is to
the names of the companies . He stated that neither he, nor his
partner, would be involved with any Board or Committee that writes bid
specifications for the purchase of equipment by the City. He stated
that Police Department policies require him to inform the Chief, or
his designee, when he proposes to obtain outside employment, get
their approval for outside employment, and prohibits him from allowing
such outside 'employment to interfere with his job, or his ability to
perform his job, but, the policies do not deal with conflict of
interest situations . He has met the requirements of the Police
Department for outside employment situations . The products he
proposes to contract with the City for would include; emergency light
equipment, bullet proof vests, new fire extinguisher products and
other products handled by his firm. He asks that he be allowed to
participate in both the blind (sealed) bidding process and the phone
bidding process . He would not be involved in making presentations to
the purchasing department, this would be handled by his partner/
salesman in order to avoid the appearance of a conflict of interest .
In the past he has been involved in the preparation of bids, however,
he would remove himself from this process, if that is the wish of the
Board. He stated that during peak season his company would employ as
many as ten people and that there are no shareholders .
Chief Boles confirmed that outside employment by Police
Department Personnel is covered in Police Department Procedures.
Approval for outside employment is granted by himself, or his
Assistant Chief and procedures contain specific guidelines with regard
to the conduct of the individual . This procedure is tightly regulated
and requires a that a written request be filed. It requires that the
employment not interfere with the individual' s job, or the capability
of the individual to perform his job duties . Once the employee has
met these guidelines, the outside employment will be authorized by the
Department and the employee instructed to file an affidavit of
disclosure with the Board of Ethics so that they may address the
conflict of interest situation. If proper purchasing procedures are
followed, in terms of the bidding process, this kind of business can
be addressed at that juncture .
Dennis Burger, Co-owner of these two companies, in response to a
question by Chairman Mertz as to how the public would know that Mr.
Knechtel were not using confidential information obtained in the
course of his employment as a Police Officer to obtain contracts
stated; That the products marketed by these two companies are general
products that are available through 8 different distributors in the
State of Michigan. They are not specially designed for just one
application. None of their products are solely procured by their
companies . They have focused on Police equipment because that is what
their business is . This is a business he has been involved in for 15
years . With respect to questions of how the phone bidding process
would be kept free of the appearance of a conflict Mr. Burger
responded that phone bids are given to the bidder with the best price.
The City writes the specifications, the bidder fills in the blanks
with respect to the price and the City accepts the lowest bid. He
confirmed that these two companies purchase their product line from
the same manufacturers as other companies in this line of business .
Mary Ellen Anastor, Purchasing Agent for the City of Lansing said
that Mr. Knechtel and Mr. Burger are proposing to be able to make
presentations, which display certain products that are manufactured
by specific companies and that are manufactured by many different
companies, to the Purchasing Department . In response to questions
regarding the purpose of presentations being made to Purchasing agents
and what assurances are available that a City employee would not
receive preferential treatment, or, assurances that decision making
would not be affected by an individual' s status as an employee, Ms .
Anastor stated that it is easier and less time consuming for
Purchasing staff to have presentations made to them by representatives
of companies . And, that there are specific procedures developed for
solicitation of phone bids . City staff follows and documents these
procedures . Anyone is welcome to come to the Purchasing Office, at
any time, to review records on any particular purchase, phone bid, or,
sealed bid. 1-In the case of phone bids, three quotes are solicited.
For products priced between $5, 000 and $15, 000 phone quotes are
allowed. Anything over $15, 000 is done by a sealed bid process . For
products between $5, 000 and $10, 000, bids can be obtained by either
the genrerating department, or the purchasing department . Products
costing over $10, 000 must be bid by the purchasing department . In the
case of tie bids, where all other givens are equal, the local company
gets the bid.
Public Member Cook stated that Mr. Knechtel is a private citizen,
as well as a Police Officer who has supplemental employment . He feels
that as long as Mr. Knechtel has met the requirements of the Police
Department and the Purchasing Procedures and because of his status as
a private citizen, he should be entitled to have his bids to do
business with the City considered.
City Attorney Smiertka asked Mr. Knechtel to come to his office
and he would issue an opinion as to whether or not he conforms to
State laws that regulate his doing business with the City. As to the
other issues of influencing specifications and on site sales, it is
up to the Ethics Board to develop rules to regulate these situations .
He informed the Board that there is a provision in the Purchasing
Ordinance that prohibits the stacking of bids .
Chairman Mertz asked Ms . Anastor what percentage of purchasing is
done at the level of $15, 000 and below. Ms . Anastor responded that,
statistically 800 of purchasing time is spent on 200 of the dollars .
Chairman Mertz asked Chief Boles what items are being purchased by the
phone bidding process for the Police Department . Chief Boles answered
that small items, such as flash lights are bought through phone bids.
Uniforms and bullet proof vests are bought on a yearly basis which
puts them in the $5, 000 to $15, 000 and above category and they are run
through the Purchasing Department . Typically phone bids are done by
a supervisor, or mid-level manager. Chairman Mertz asked Chief Boles
1.
Author's Note: The statement pertaining to phone bids should be corrected, to reflect the actual procedures used
by the Purchasing Department, to read as follows; "In the case of phone bids, three quotes are solicited. For
products priced up to $2,500 PHONE QUOTES ARE ALLOWED. ANYTHING BETWEEN $2,500 AND $10,000 REQUIRES WRITTEN QUOTES
FROM VENDORS. BIDS FOR GOODS OR SERVICES BETWEEN $10,000 AND $15,000 ARE HANDLED BY THE PURCHASING DEPARTMENT WHO
WILL DETERMINE IF THEY NEED TO BE DONE BY A SEALED BID PROCESS. EVERYTHING FROM $15,000 AND UP ARE DONE BY FORMAL
SEALED BIDS ISSUED AND RECEIVED BY THE PURCHASING DEPARTMENT. FOR PRODUCTS BETWEEN $5,000 AND $10,000 BIDS CAN BE
OBTAINED BY EITHER THE GENERATING DEPARTMENT OR THE PURCHASING DEPARTMENT."
if the choice of vendors is up to those persons . Chief Boles
responded that they are not soliciting a product in terms of asking
someone to make something for them. They are usually buying a product
that is being marketed around the state. . Chairman Mertz asked if
there are any rules prohibiting the giving of gifts or benefits to
Police Officers . Chief Boles answered that Police Officers are banned
from accepting gifts . Chairman Mertz asked Ms . Anastor if there are
any Purchasing rules that prohibit the giving of gifts or benefits by
vendors, or, are presentations ever made over lunch? Ms . Anastor
answered that Purchasing Agents are prohibited from accepting gifts
for dealing with vendors.
Public Member Isiogu stated that he would not like to see this
Board deny the City the advantages of doing business with these
companies, however, the Board needs assurances that procedures are
being properly followed in order to avoid the appearance of
impropriety and that is what we have been struggling with.
Chairman Mertz asked Mr. Knechtel to meet with City Attorney
Smiertka before the middle of March. The City Attorney will then be
able to give the Board his opinion of the legality of Mr. Knechtel
doing business with the City under State Law. That will allow the
Board to advise him further as to what he can and cannot involve
himself in. He cautioned Mr. Knechtel to not rely on former City
Attorney Knot' s opinion. There is a State Statute that regulates
whether or not he will be able to contract with the .City. To the
extent that these contracts are not prohibited, the Board will develop
guidelines as to how he may do business with the City. He will
probably be limited in the circumstances in which he can contract for
City business .
City Clerk Slade said that the Board should look very hard at
phone bids, as it is not too difficult to find out which companies are
high on items and solicit bids from them and then go to the company
that they want to do business with to get the low bid.
Public Member Johnson said that she wanted the minutes to reflect
her concern over the method in which the phone bidding process is
implemented and her concern over the process used for the selection
of persons who will be contacted by phone to submitt their bid.
Additionally, she requested that the Board be given information on
what percentage of purchasing dollars are spent through the phone
bidding process.
Discussion followed in which the Board reviewed Mr. Knechtel' s
testimony and purchasing procedures used by the City. Particularly
the Board' s ability to formulate regulations to cover the City
contracting for business with Mr. Knechtel . The Board is responsible
for preserving his right to privacy on issues with which the City is
not concerned. The Board can reserve the right to require that he
file disclosures on companies with which he proposes to do business
with the City of Lansing. The final decision on Opinion #18 was
deferred until the Board hears from City Attorney Smiertka as to the
State Statute at the March meeting. Chairman Mertz urged all Board
Members to take another look at the previous disclosures filed by Mr.
Knechtel .
NEW BUSINESS
Tom Downs Bill for Services 1-1-95 to 1-31-95 : Special Assistant
City Attorney Downs noted that the statement for these services
contains a lot of inked out information which is confidential and
should not be revealed to opposing counsel . , A full copy of the
statement is on file with City Clerk Slade, however, it is
confidential information. He also noted that there are several items
listed on the statement as NC (no charge) . Work that is being done
over and above the approved budget is being done on a pro-bono basis.
Public Member Johnson requested that Mr. Downs continue to maintain
a detailed record of time spent on this case and expenses incurred so
that the Board has a record of it .
Motion by Public Member Cook to authorize payment for services in
the amount of $11, 490 . 70 to Special Assistant City Attorney Tom Downs
from Account #101-173902-743000-0 .
MOTION CARRIED 6/0
City Attorney Smiertka left this meeting of the Board of Ethics
at 6 : 59 P.M.
Chairman Mertz recessed this meeting of the Board of Ethics at
7 : 00 P.M. and reconvened the meeting at 7 : 10 P.M.
Executive Session: Motion by Public Member Johnson "that the
Board enter into closed/executive session for the purpose of
discussion on the conduct of a former City employee . "
MOTION CARRIED 6/0
The Board of Ethics moved into closed/executive session at 7 :15
P.M. The sealed minutes of this session are on file in the office of
the City Clerk.
Motion by Vice-Chairwoman Meissner to raise from closed/executive
session and return to open session.
MOTION CARRIED 6/0
The Board of Ethics rose from closed/executive session and. re-
entered open session at 8 :45 P.M.
Motion by Vice-Chairwoman Meissner to adopt Formal Opinion #23 ,
and refer it to the City Attorney and/or the Special Assistant City
Attorney, with Mr. Downs report attached.
MOTION CARRIED 5/0, MEMBER ISIOGU ABSTAINING
ADJOURNMENT
Motion by Public Member Cook to adjourn.
MOTION CARRIED 6/0
Meeting adjourned at 9 : 35 P.M.
Respectfully submitted, .
DEBORAH K. MINER
Recording Secretary
Date Approved: March 28 , 1995
CITY" OF LANSING - BOARD OF ETHICS
REGULAR MEETING
Tuesday, February 28, 1995 - 9th Floor Conference Room, City Hall
AGENDA
CALL TO ORDER: 5 053 P.M. The Chair presiding
ROLL CAL
[ J. Mertz, Chair [4 G. Johnson, Member
Cook, Member [,?--oO. Isogu, Member — rj C�
[ Meissner, Vice-Chair L�/ . Lehmann, Member
[ ] J. Trezise, Me er
A Quorum is: [ resen - [ ]No Present
[ Ot ers Present: A A A 4A
ZZ
APPRO L DA. [ ] �Su tted [ ] With Changes Noted
SECRETARY'S REPORT:
[ ] Approval of Minutes of:
[ ] 1/24/95
[ ] Correspondence Received And Sent Since Last Meeting
1. Letter dated January 31, 1995 from Stuart Shafer,
Attorney for Jan Lazar
2 . Statement from Tom Downs for legal services for
dates of 1/1/95-1/31/95
3 . Copy of a letter dated 2/6/95 from Tom Downs to
City Attorney Smiertka
4 . Copy of a letter dated 2/7/95 from Tom Downs to
John M. Donohue
5. Copy of letters sent to Dennis Gilliland and Alan
Sonnanstine by Secretary Slade (conveying copies of
Duarte opinion to them)
6. Revisions to IRS Section 415 Limitations received
from Council agenda of 2/13/95
7. City Attorney's Opinion #95-02 regarding definition
of default as included in City Charter (referral to
the Board from City Council agenda)
[ ] Inquiries & Complaints Received Since Last Meeting
[ ] Next Regular Meeting Date: March 28 , 1995
CITY ATTORNEY'S REPORT:
[ ] Affidavits of Disclosure Filed
[ ] Current Legal Developments of Interest
CHAIR'S REPORT
[ ]
PUBLIC COMMENT
NEW BUSINESS
[ ] 1. Interview with Don Knechtel
[ ] 2 . To review and authorize payments for services
rendered by the Special Assistant City Attorney in
January
[ ] 3 . EXECUTIVE CLOSED SESSION
ADJOURNMENT
Date Printed: 02/22/95
CITY OF LANSING -MEMBERSHIP OF THIS BOARD
Board of Ethics
John F. Mertz Term Expires: 06/30/97
330 N. Clemens Street Chair or Member: C
Lansing MI 48912 Ward or At Large:
Home Phone: 484-4983
Work Phone: 482-5200
Donald Cook Term Expires: 06/30/95
1000 W. Mt. Hope Ave. Chair or Member: M
Lansing MI 48910 Ward or At Large:
Home Phone: 374-1074
Work Phone: 335-1276
Orjiakor N. Isiogu, J. D. Term Expires: 02/20/96
2500 Provincial House Chair or Member: M
Lansing MI 48910 Ward or At Large: 02
Home Phone: 394-3316
Work Phone:
Georgia L. Johnson, M. D. Term Expires: 02/20/99
2608 Darien Drive Chair or Member: M
Lansing MI 48912 . Ward or At Large: 01
Home Phone: 372-9642
Work Phone:
David Lehmann Term Expires: 02/20/98
2509 York Road Chair or Member: M
Lansing MI 4.8911 Ward or At Large: 03
Home Phone: 882-2710
Work Phone:
Joyce Meissner Term Expires: 06/30/96
2711 LaSalle Blvd. Chair or Member: M
Lansing MI 48912 Ward or At Large:
Home Phone: 374-7932
Work Phone:
Joan Trezise Term Expires: 02/20/97
3635 Colchester Road Chair or Member: M
Lansing MI 48906 Ward or At Large: 04
Home Phone: 321-5923
Work Phone:
CITY OF LANSING
BOARD OF ETHICS
TO: John M. Donohue, Special Assistant City Attorney
DATE: February 28, 1995
RE: FORMAL OPINION 23
ALLEGED CHARTER AND ORDINANCE VIOLATIONS
EARLY RETIREMENT - JANET LAZAR
After investigating citizen complaints received by the Board of Ethics following the
passage and purported implementation of 1992 Council Resolution 201, and review of the
attached report by the Special Assistant City Attorney assigned to the Board, the Board of Ethics
determines:
Probable cause to believe violations occurred does exist and, pursuant to Section
290.03(a) of the Code of Ordinances, recommends criminal prosecution of the violations
noted in the attached report to the City Attorney.
Furthermore, the Board of Ethics adopts the recommendations of the report respecting
civil remedies and urges the City to take immediate corrective action to terminate further illegal
payments as noted and to recover all of the funds determined to have been illegally obtained by
the former employee to date.
Respectfully Submitted,
THE LANSING BOARD OF ETHICS
DONALD COOK, Public Member JOHN F. MERTZ, Chair
ORJIAKOR N. ISIOGU, Public Member JOYCE MEISSNER, Vice-Chair
GEORGIA L. JOHNSON, Public Member DAVID LEHMANN, Public Member
Joan Trezise did not participate in the vote on this matter - she was absent from the meeting for
a scheduled vacation.
95-02-22A09:26 RCVD
' CITY OF LANSING
INTEROFFICE COMMUNICATION
David C. Hollister, Mayor
TO: Marilyn Slade, City Clerk DATE: 2/20/95
FROM: Jack A. Nelson, Manager of Building Office
SUBJECT: BOARD OF ETHICS COMMITTEE
Attached please find a request for opinion to the Board of Ethics Committee. Please
forward the necessary copies to the committee members.
Thank you for your assistance.
JAN:kw
CITY OF LANSING
' INTEROFFICE COMMUNICATION
David C. Hollister, Mayor
TO: City of Lansing, Board of Ethics DATE: 2/16/95
FROM: Jack A. Nelson, Manager of Building Office
SUBJECT: REQUEST. FOR OPINION
The Building Safety Office is requesting the Ethics Board to consider the following
issue which is a collateral issue to Opinions 12 and 19 which were previously
addressed by the committee.
The Department is requesting the board to review state statutes, the City Charter
and the City's Ethic Ordinance to determine if the action disclosed will give rise to
a conflict of interest.
It has come to my attention that Mr. Larry Howison who is employed by the City of
Lansing, in the capacity of Code Compliance Officer, is also conducting an electrical
business commonly known as Howison Electric.
Code Compliance is a division of the Department of Planning and Neighborhood
Development. A Code Compliance Officer's primary responsibility is to enforce the
City of Lansing Uniform Housing Code. Mr. Howison does not inspect electrical
installations as part of his normal work functions.
According to the Departments records electrical permits have been issued to Howison
Electric for electrical work within the jurisdictional limits of the city, under
Mr. Howisons' master license.
As the Manager of the Building Safety Office I am requesting an opinion whether
Mr. Howison can be employed as a Code Compliance Officer and simultaneously have
an electrical business. That is to say, does the action give rise to a conflict of
interest when electrical work is being accomplished under his masters license in the
City of Lansing and does the action give rise to a conflict of interest when electrical
work is being accomplished under his license outside the jurisdictional limits of the
City of Lansing.
It is my understanding that Mr. Howison holds the master electrician license and his
son who has a journeymans license performs the work.. The State statue requires
that a master electrician obtain electrical permits. Mr. Howison is not conducting
private business on city time, nor is he involved in inspecting the work.
JAN:kw
cc: Dennis Sykes, Director
Planning & Neighborhood Development
City of Lansing - Board of Ethics
February 22, 1995
Mr. Stuart R. Shafer
Reid and Reid
200 Washington Square, North
Suite 400
Lansing, MI 48933-1384
Dear Mr. Shafer:
Pursuant to your request of January 31, 1995, I am informing you that the Board of Ethics will be
holding a meeting concerning your client, Jan Lazar, on Tuesday, February 28, 1995 at 5:00 P.M. in
the Mayor's Conference Room, 9th Floor, City Hall.
The matter concerning Ms. Lazar has been shown on the agenda as a closed executive session pursuant
to your request. I am attaching a copy of the meeting agenda for your information.
Sincerely,
Marilynn Slade
Secretary, Board of Ethics
(517) 483-4130 City Clerk's Office, 124 W. Michigan Ave. Lansing, MI 48933-1695
REC :N ED
KOHL, SECREST, WARDLE, LYNCH,
CLARK AND HAMPTON '
COUNSELORS AT LAW 94 MACOMB PLACE
MT.CLEMENS. MI 48043.7903
30903 NORTHWESTERN HIGHWAY
(BIO)465-7160
TELEFACSIMILE(810)465.0673
P.O. BOX 3040
7335 WESTSHIRE DR., SUITE 103
FARMINGTON HILLS, MICHIGAN 48333-3040 LANSING, MI 48917.9764
(517)627-1881
TELEFACSIMILE(517)627-1887
TELEPHONE(810)851-9500
JOHN M. DONOHUE TELerACS E(810)851-2158 833 KENMOOR DRIVE,S.E.
GRANO RAPIDS. MI 49546-2373
(616)285-0143
TELEFACSIMILE(616)285.0145
February 10, 1995 3061 COMMERCE DRIVE
P.O. BOX 611088
PORT HURON,MI 48061-1088
(810)385-8888
TELEFACSIMILE(810)385.9593
5757 WHITMORE LAKE ROAD
SUITE 1450
BRIGHTON.MI 48116.1902
(810)229-2570
Tom Downs _ TELEFACSIMILE(8 O)229.5076
Special Assistant City Attorney
CITY OF LANSING
230 North Washington Square
Suite 306
Lansing, Michigan 48933
Dear Mr . Downs :
This letter is in response to yours of February 7 , 1995 . I
will be out of town on vacation the week of February 13 , 1995,
returning to the office February 20 , 1995 . At that time, I
will be prepared to consider your suggestion for a meeting
under less hectic circumstances as I try to clear my desk.
V y truly your ,
O N M. DONOHUE
JMD/t.mg
cc: James Smiertka
`.onflicts of Interest 290.03 '
(2) A spouse of the officer or employee, or a spouse's
relative within the fifth degree of consanguinity to the
spouse, under the civil law computation method.
(h) "Governmental body" means an authority, department, commis-
sion, committee, council, board, bureau, division, office,
legislative body or other agency of the City.
(i) "Immediate family" means a child of an individual, a spouse of
an individual, or an individual claimed by that individual or
individual's spouse as a dependent under the Internal
Revenue Code, or the parents, parents-in-law, brothers,
sisters, sisters-in-law, brothers-in-law, stepparents, step-
brothers or stepsisters of an individual.
Q) "Loan" means a transfer of money, property or anything else
of ascertainable monetary value in exchange for an obligation,
conditional or not, to repay in whole or in part.
(k) "Officer or employee" means an elected or appointed officer or
an employee,.of-:a;,governmental,body:of,the.: City. .
(1) ."Confidentiahr>information",;-means information, which., has . been
obtained_.An;.the.course 'of. .one's employment. with the City or
in,_,.ful#i ing�jhe,;duties.;of one's., office .with the,:City, which
information :'is not known by or available to members of the
public generally and which has been obtained, on the basis of
a promise :of confidentiality or which is required to be held
confidential .- by law or regulation or which the employee or
officer has been instructed is being held confidentially.
(Ord. 634. _ Passed 2-7-83.)
290.03 COMPLAINTS.
(a) Any person may file a signed written complaint with the City
Clerk alleging a violation of this chapter. Upon receipt of such a..com-
plaint, the City. Clerk shall forward the complaint to the Board of
Ethics which shall investigate to determine whether or not probable
cause exists to believe a violation of this chapter occurred. If the
Board determines that probable cause to believe a violation occurred
does exist, it may recommend prosecution of the violation to the City
Attorney.
(b) No person shall knowingly make a false statement in a com-
plaint submitted pursuant to this chapter.
(c) The Board shall give written notice, including notice of the
nature of the complaint, by certified mail, return receipt requested, to
a person within ten business days after the receipt of a written com-
plaint against such person.
(Ord. 634. Passed 2-7-83.)
15.267 PUBLIC OFFICERS AND EMPLOYEES `
Note 1
1. In general rectly asserts that the discussion of certain rnat-
A committee of a board of education, com- tern is exempt, the board may hold a closed
posed of less than a quorum of the board, may session to discuss these matters by affirmative
not meet to discuss public policy issues when a vote of two-thirds of the members. Op.Atty.
quorum of the board to which it reports is Gen.1978, No. 5281, p. 377.
actually present without notice to the public and The procedure for calling a closed session
an opportunity for the public to attend as re- provided for in the Open Meetings Act may only
quired by the Open Meetings Act, § 15.261 et be used when the specific circumstances enu-
seq. Op.Atty.Gen.1982, No. 6057, p. 622. merated in § 15.268 are present. Op.Atty.Gen.
I 1977, No. 5183, p. 21.
The state board of ethics is subject to the There is no provision in the Open Meetings
I Open Meetings Act, § 15.261 et seq., and when Act which prohibits a public body from noticing
it meets in closed session for the protection of an open meeting and then, after consideration
individual rights,it must comply with the provi- of matters required to be subject to public scru.
sions of said act,with respect to the calling and tiny, going into a closed session to discuss mat-
holding of the closed session. Op.Atty.Gen. ters permitted under the act. Op.Atty.Gen.
1980, No. 5760, p. 935. 1977, No. 5183, p. 21.
Records and files concerning any dismissed 2_ Vote
complaint or terminated investigation by the For purposes of calling a closed meeting un-
state board of ethics may be suppressed to pro- der the Open Meetings Act,there must be a two-
tect an individual's privacy, but may only be thirds roll call vote of all the members of the
disposed of by the state board of ethics in accor- public body appointed to and serving, not mere-
dance with § 18.13c. Op.Atty.Gen.1980, No. ly two-thirds of those attending the particular
5760, p. 935. meeting. Op.Atty.Gen.1977, No. 5183, p. 21.
Any portion of an administrative hearing held 3. Minutes
under provisions of§ 400.9, could be closed to
general public pursuant to exemption provision A public body may meet in closed session to
of§ 15.268 if matters to be discussed involved approve the minutes of a closed session of the
records concerning categorical assistance, med- public body. Op.Atty.Gen.1986, No. 6365, p.
ical assistance or federally funded assistance 288.
and service programs protected from disclosure The minutes of a closed session held to dis-
under federal and state statutes, and decision to cuss collective bargaining negotiations in com-
hold closed sessions had to be reached at open pliance with §§ 15.267 and 15.268 of the Open
sessions in accordance with this section. Op. Meetings Act may be released to the public only
Atty.Gen.1979, No. 5436, p. 31, pursuant to an order of a court in a civil action
brought under §§ 15.270, 15.271, or 15.273 of
If a property owner whose tax assessment is the Open Meetings Act. Op.Atty.Gen.1981, No.
under consideration by a board of review cor- 6019, p. 507.
i
15.268. Closed sessions; purposes
Sec. 8. A public body may meet in a closed session only for the following
purposes:
(a) To consider the dismissal, suspension, or disciplining of, or to hear
complaints or charges brought against, or to consider a periodic personnel
evaluation of, a public officer, employee, staff member, or individual agent, if
the named person requests a closed hearing. A person requesting a closed
hearing may rescind the request at any time, in which case the matter at issue
shall be considered after the rescission only in open sessions.
(b) To consider the dismissal, suspension, or disciplining of a student if the
public body is part of the school district, intermediate school district, or
institution of higher education that the student is attending, and if the student
or the student's parent or guardian requests a closed hearing.
(c) For strategy and negotiation sessions connected with the negotiation of a
collective bargaining agreement if either.negotiating party requests a closed
hearing.
180
i
OPEN MEETINGS ACT 15.268 ! ;
A
(d) To consider the purchase or lease of real property up to the time an
option to purchase or lease that real property is obtained.
(e) To consult with its attorney regarding trial or settlement strategy in
connection with specific pending litigation, but only if an open meeting would
have a detrimental financial effect on the litigating or settlement position of the I,
public body.
(f) To review the specific contents of an application for employment or
appointment to a public office if the candidate requests that the application
remain confidential. However, all interviews by a public body for employment
or appointment to a public office shall be held in an open meeting pursuant to
this act. / -
(g) Partisan caucuses of members of the state legislature.
(h) To consider material exempt from discussion or disclosure by state or �-
federal statute.
(i) For a compliance conference conducted by the department of commerce
under section 16231 of the public health code, Act No. 368 of the Public Acts of
1978, being section 333.16231 of the Michigan Compiled Laws, before a
complaint is issued.
Amended by P.A.1984, No. 202, § 1, Imd. Eff. July 3, 1984; P.A.1993, No. 81, § 1, Eff.
April 1, 1994. s
Historical and Statutory Notes
Source: ed "and if' for "when" following "student is
P.A.1976, No. 267, § 8, Eff. March 31, 1977. attending,"; and, in subds. (c), (e), and .(f),
C.L.1970, § 15.268. substituted "if" for "when".
The 1984 amendment, in the introductory The 1993 amendment, in subd. (a), in the.
sentence,inserted "a"; in subd. (a), in the first second sentence substituted "after the rescis-
sentence inserted "or to consider a periodic sion" for "thereafter"; and added subd. (i). g
Personnel evaluation of,", and substituted "if' For contingent effect provisions of P.A.1993, {
for "when"; in subd. (b), substituted "if' for No. 81, see the Historical and Statutory Notes ,
"when"following "of a student", and substitut- following§ 15.267.
Law Review Commentaries
Guide to hiring process for public bodies un- Open meetings by public bodies during labor
der Open Meetings Act. John Wernet, 63 Mich. negotiations. Det. C.L.Rev. 613 (1977).
B.J. 1040 (1984).
Library References
Municipal Corporations <:::-92. C.J.S. Municipal Corporations § 400. 1.
Schools e-57. C.J.S. Schools and School Districts § 123. i
WESTLAW Topic Nos. 268, 345. r
Notes of Decisions
In general 2 Employment 6-10 {
Attorney-client privilege 16 In general 6 I
Burden of proof 18 Colleges and universities 8 ,
Collective bargaining agreements 12 Performance evaluations 9
Colleges and universities, employment 8 Schools 7
Consultation with attorney 14 Discipline of students 11 Suspension of employees 10
Discussion of trial or settlement strategy 15 Evidence 20
181
1 ,
OPEN MEETINGS ACT 15.263
mencing action based on violation of the Act at A board of tax review is a local governing
time minutes of meeting at which the "deci- body empowered by statute to exercise govern- t
Sion" was made were made available to the mental authority and a finding of the board of 1
public, and thus, action based upon the board's review is a "decision" within the meaning of
decision was timely commenced. Cape v. How- this section of the Open Meetings Act; its deter-
t ell Bd. of Educ. (1985) 378 N.W.2d 506, 145 minations effectuate public policy,and therefore
Mich.App. 459. the meetings of boards of review are subject to _
Provision of § 15,263, that "decisions" of the requirements of the Open Meetings Act.
public body should be made at meeting open to Op.Atty.Gen.1978, No. 5281, p. 377.
public, prohibited township boards from final v
action on any matter during closed meeting. 6. Public policy
op.Atty.Gen.1979, No. 5445, p. 57. When members of public body meet to dis-
The discussion of the form and style of a cuss their individual elections and political con-
decision or order of the public service commis- cerns, they are not considering matter of public
sion is part of the deliberation toward and ren- policy within meaning of Open Meetings Act,
dering of the final decision. Op.Atty.Gen.1978, and need not follow requirements of such Act.
No. 5310, p. 465. Op.Atty.Gen.1979, No. 5444, p. 57.
15.263. Meetings of public bodies; attendance, nonapplication
Sec. 3. (1) All meetings of a public body shall be open to the public and
shall be held in a place available to the general public. All persons shall be
permitted to attend any meeting except as otherwise provided in this act. The
right of a person to attend a meeting of a public body includes the right to tape- _
record, to videotape, to broadcast live on radio, and to telecast live on television
the proceedings of a public body at a public meeting. The exercise of this right
shall not be dependent upon the prior approval of the public body. However, a ti
public body may establish reasonable rules and regulations in order to mini- '
mize the possibility of disrupting the meeting.
(2) All decisions of a public body shall be made at a meeting open to the
public.
(3) All deliberations of a public body constituting a quorum of its members
shall take place at a meeting open to the public except as provided in this
section and sections 7 and 8.t
(4) A person shall not be required as a condition of attendance at a meeting s
of a public body to register or otherwise provide his or her name or other
information or otherwise to fulfill a condition precedent to attendance.
(5) A person shall be permitted to address a meeting of a public body under
rules established and recorded by the public body. The legislature or a house
of the legislature may provide by rule that the right to address may be limited to
prescribed times at hearings and committee meetings only.
(6) A person shall not be excluded from a meeting otherwise open to the
Public except for a breach of the peace actually committed at the meeting. '`
(7) This act does not apply to the following public bodies only when deliber-
ating the merits of a case:
,t.r
(a) The worker's compensation appeal board created under the worker's 3 r
disability compensation act of 1969, Act No. 317 of the Public Acts of 1969, as Y i
amended, being sections 418.101 to 418.941 of the Michigan Compiled Laws.
s..
(b) The employment security board of review created under the Michigan ;
employment security act, Act No. 1 of the Public Acts of the Extra Session of
!.
165 i
f
15.263 PUBLIC OFFICERS AND EMPLOYEES
1936, as amended, being sections 421.1 to 421.73 of the Michigan Compiled
Laws.
(c) The state tenure commission created under Act No. 4 of the Public Acts of
the Extra Session of 1937, as amended, being sections 38.71 to 38.191 of the
Michigan Compiled Laws, when acting as a board of review from the decision
of a controlling board.
(d) An arbitrator or arbitration panel appointed by the employment relations
commission under the authority given the commission by Act No. 176 of the
Public Acts of 1939, as amended, being sections 423.1 to 423.30 of the
Michigan Compiled Laws.
(e) An arbitration panel selected under chapter 50A of the revised judicature
act of 1961, Act No. 236 of the Public Acts of 1961, being sections 600.5040 to
600.5065 of the Michigan Compiled Laws.
(f) The Michigan public service commission created under Act No. 3 of the
Public Acts of 1939, being sections 460.1 to 460.8 of the Michigan Compiled
Laws. 1
(8) This act does not apply to an association of insurers created under the
insurance code of 1956, Act No. 218 of the Public Acts of 1956, being sections
500.100 to 500.8302 of the Michigan Compiled Laws, or other association or
facility formed under Act No. 218 of the Public Acts of 1956 as a nonprofit
organization of insurer members.
(9) This act does not apply to a committee of a public body which adopts a
nonpolicymaking resolution of tribute or memorial which resolution is not
adopted at a meeting.
(10) This act does not apply to a meeting which is a social or chance
gathering or conference not designed to avoid this act.
(11) This act shall not apply to the Michigan veterans' trust fund board of
trustees or a county or district committee created under Act No. 9 of the Public
Acts of the First Extra Session of 1946, being sections 35.601 to 35.610 of the
Michigan Compiled Laws, when the board of trustees or county or district
committee is deliberating the merits of an emergent need. A decision of the
board of trustees or county or district committee made under this subsection
shall be reconsidered by the board or committee at its next regular or special
meeting consistent with the requirements of this act. "Emergent need" means
a situation which the board of trustees, by rules promulgated under the
administrative procedures act of 1969, Act No. 306 of the Public Acts of 1969,
as amended, being sections 24.201 to 24.328 of the Michigan Compiled Laws,
determines requires immediate action.
Amended by P.A.1981, No. 161, § 1, Imd. Eff. Nov. 30, 1981; P:A.1986, No. 269, § 1,
Imd. Eff. Dec. 19, 1986; P.A.1988, No. 158, § 1, Imd. Eff.June 14, 1988; P.A.1988,No.
278, § 1, Imd. Eff. July 27, 1988.
Sections 15.267 and 15.268.
i
166
i
OPEN MEETINGS ACT 15.261
Note 6
2. Purpose Promotion and tenure committees and budget
Purpose of the Open Meetings Act(OMA)is to committees of Wayne State University are advi-
promote openness and accountability in govern- sory boards and are not subject to provisions of
S ment, and, thus, it is to be interpreted broadly Open Meetings Act. Op.Atty.Gen.1979, No. y
to accomplish that goal. Booth Newspapers, 5505, p. 221.
Inc. v. University of Michigan Bd. of Regents The blind stand operators advisory committee f
(1992) 481 N.W.2d 778, 192 Mich.App. 574. does not come within the provisions of the Open
Primary purpose served by open meeting leg- Meetings Act. Op.Atty.Gen.1977, No. 5183, p.
islation is to ensure that performance of neces- 21
sary governmental functions is open to the pub- The Open Meetings Act does not apply to
lic. Board of Ed. of Rochester Community committees and subcommittees of public bodies
Schools v. Michigan State Bd.of Ed.(1981)305 which are merely advisory or only capable of
N.W.2d 541, 104 Mich.App. 569. making recommendations concerning the exer-
3. Closed hearings cise of governmental authority,these bodies are
not legally capable of rendering a final decision;
Because Open Meetings Act (OMA) is inter- however, where such subcommittee contains
preted liberally in favor of openness, Court of the entire body of the public body which it
Appeals will construe closed-session exceptions serves it would be a violation of the Act to allow
strictly to limit situations that are not open to such subcommittees to meet in closed session.
the public. Booth Newspapers, Inc.v.Universi- Op.Atty.Gen.1977, No. 5183, p. 21.
ty of Michigan Bd. of Regents (1992) 481
N.W.2d 778, 192 Mich.App. 574. 5. Collective bargaining negotiations
As long as State Board of Education provided Where a city's four-man bargaining commit-
parties contesting property transfer with a fair tee, as an advisory body, can only recommend
and impartial hearing in accordance with full approval of a negotiated collective bargaining
panoply of procedural safeguards guaranteed by agreement to the city council, the bargaining
the Administrative Procedure Act (§ 24.201 et committee is not subject to the provisions of the
seq.), Board was not required to allow the par- Open Meetings Act and need not open its nego- a
ties or nonparties to address it concerning mer- tiating session to the public. Op.Atty.Gen.1978,
its of contested case at public hearing of the No. 5286, p. 403.
Board. Board of Ed. of Rochester Community Even assuming that a city's bargaining com-
Schools v.Michigan State Bd.of Ed.(1981)305 mittee is a"public body"within the meaning of
N.W.2d 541, 104 Mich.App. 569. the Open Meetings Act,its "strategy and negoti-
The provisions of the Open Meetings Act do ating sessions connected with the negotiation of
allow students and public employees to request a collective bargaining agreement" are specifi- r.
and be accorded a closed hearing when their cally authorized to be held in hearings closed to
discipline,suspension or dismissal is being con- the public. Op.Atty.Gen.i978,No.5286,p.403.
sidered by a public body. Op.Atty.Gen.1977, Where a city has appointed a bargaining
No. 5183, p. 21. agent or committee to act on its behalf and has
4. Advisory boards and committees closed the negotiating sessions to the public,the
city council may restrict members of the council
While advisory committees of less than a quo- from participating in or observing the collective
rum that do not collectively deliberate toward bargaining negotiations. Op.Atty.Gen.1978,
resolution of public business are not within pur- No. 5286, p. 403.
view of the Open Meetings Act (OMA), when Where the negotiating sessions of a city's col-
such committees meet in an attempt to avoid lective bargaining committee are not required
application of the OMA, the OMA will apply. to be open to the public and where an individu-
Booth Newspapers, Inc. v. University of Michi- al councilman, acting in his individual capacity,
gan Bd.of Regents(1992)481 N.W.2d 778, 192 has no greater right to attend these sessions
Mich.App. 574, affirmed in part, reversed in than any other member of the public, the city 1
part 507 N.W.2d 422, 444 Mich. 211. council may properly exclude such councilman
The legislature has not, by the provisions of from attendance at the negotiating sessions.
the Open Meetings Act, § 15.261 et seq., re- Op.Atty.Gen.1978, No. 5286, p. 403. "
quired that the student budget review and allo-
cation committee at Central Michigan Universi- 6. Employment proceedings 3 s
tY, whose function is to gather information, Proper forum to seek relief from violation of
conduct hearings and make recommendations Open Meetings Act or Freedom of Information ,`
regarding the allocation of university funds to Act(§ 15.231 et seq.)is circuit court, and same :,
the office of student affairs, to conduct its meet- was true despite public employer's alleged vio-
ings in public. Op.Atty.Gen.1982, No. 6053, p. lations which allegedly constituted interference t
616. with formation of labor.organization. Local 79,
161 t
t � s
r ;
S `
tr