STATE OF MICHIGAN IN THE 20TH CIRCUIT COURT FOR THE COUNTY OF OTTAWA PETER ARMSTRONG, SR., HON. MATTHEW R. KACEL SUSAN HOEKEMA, JASON Sitting by SCAO Assignment HUNTER, and JEFFREY PADNOS, File No. 2023-007207-FH Plaintiffs, vs. OTTAWA COUNTY BOARD OF COMMISSIONERS, Defendant. / Mark Brewer (P35661) David A. Kallman (P34200) GOODMAN ACKER, P.C KALLMAN LEGAL GROUP, PLLC Attomey for Plaintiffs Attorney for Defendant 17000 W. Ten Mile Road 5600 W. Mount Hope Highway Southfield, Ml 48975 Lansing, Ml 48917 (248) 483-5000 (617) 322-3207 Ata session of said Court held in the Hall of Justice in the City of Muskegon, county and state aforesaid, PRESENT: HONORABLE MATTHEW R. KACEL Circuit Judge OPINION & ORDER RE: MOTION FOR SUMMARY DISPOSITION Plaintiffs have filed suit against the Ottawa County Board of Commissioners alleging the Defendant violated the Open Meetings Act (hereinafter “OMA’)', and Michigan Constitution. Plaintiffs seek declaratory and injunctive relief. The Defendant has filed a motion for summary disposition under MCR 2.116(C)(8) and (10). Plaintiffs + MCL 15.261 et seq Page 1 ofoppose the motion. The Court heard arguments from the parties on June 16, 2023. This opinion follows. The Plaintiffs lawsuit is predicated on the pre-election conduct of nine members of the current eleven-member Ottawa County Board of Commissioners (hereinafter “BOC’).” The Plaintiffs have dubbed these nine members the “Ottawa 9” and the Court, hereinafter, will refer to them as such. The Ottawa 9 were elected to the BOC on November 8, 2022. Eight of the nine commissioners were sworn into office on January 3, 2023. One was sworn in on December 27, 2022.? Plaintiffs allege that following the November 2022 election, the Ottawa 9 began meeting in private* to discuss and decide matters of public policy. The meetings were not open to the public and there was no advanced public notice of the date, time, and location of the same. These meetings, Plaintiff alleges, resulted in the creation and adoption by the Ottawa 9 of a specific agenda that would be implemented at the first public meeting of the BOC in January 2023. That agenda included the election of Joe Moss as board chairman, the adoption of board rules created by Commissioner Moss, the appointment of Ottawa 9 commissioners to specific committees, the dissolution of the Office of Diversity, Equity, and Inclusion and the termination and replacement of county employees and corporate counsel.? On January 3, 2023, the newly-elected BOC held its first public meeting. At that meeting, the Ottawa 9, comprising a majority of the BOC, implemented their agenda. 2 Those nine members are Gretchen Cosby, Lucy Ebel, Jacob Bonnema, Joe Moss, Rebekah Curran, Sylvia Rhodea, Roger Belknap, Allison Miedema, and Kyle Terpstra. The remaining members are Doug Zylstra and Roger Bergman. 2 That member is Jacob Sonnema “It is unclear from the pleadings where the meetings were held (e.g. a private residence versus a public restaurant) lr the number of meetings that occurred. The meetings did not include Commissioners Zylstra and Bergman = Plaintiff specifically alleges the Ottawa 9 decided to fire County Administrator John Shay and replace him with John Gibbs, fire county corporate counsel Doug Van Essen and hire the Kallman Legal Group, fire Director Robyn {Arik of the Diversity, Equity, and Inclusion Office, and fire Health Commissioner Adeline Hambley and replace her with Nathaniel Kelly Page 2 of 6‘A motion brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint with all the factual allegations assumed to be true when construed in a light most favorable to the nonmoving party. Maiden v. Rozwood, 461 Mich. 109, 119; 597 N.W.2d 817 (1999). Such a motion can only be granted where the claims alleged are "so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Wade v. Deptt of Corrections, 439 Mich. 158, 163; 483 N.W.2d 26 (1992) When deciding a motion under MCR 2.116(C)(8), the court’s inquiry is confined to the pleadings alone. MCR 2.116(6)(6). The Court will frst address Count | of the Plaintiffs’ Complaint. The OMA provides rules that apply to public bodies. MCL 15.263. In general, a public body must hold its meetings open to the public, in a place available to the general public, allow the public to record the meeting®, and allow the public to address the public body.” The public body must conduct deliberations and make its decisions at a meeting that is open to the public. Because the OMA only applies to public bodies, the dispositive issue in regards to Defendants motion under MCR 2.116(C)(8) is whether the Ottawa 9 constituted a public body within the meaning of the OMA. The OMA defines a public body, in relevant part, as “any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, that is empowered by state constitution, statute, charter, ordinance, resolution, or tule to exercise governmental or proprietary authority or perform a governmental or proprietary function.” MCL 15.262(a). The Plaintiffs do not argue that the Ottawa 9 were *mict 15.263(1) > MCL 15.26315). * MCL 15.263(2) & (3) Page 3 of 6ade jure public body. Rather, they contend that the Ottawa 9 were a de facto public body from November 8, 2022 to January 3, 2023 because the group exercised government authority and performed government functions during that period. The plain language of MCL 15.262(a) provides that an individual? or group becomes a public body for the purposes of the OMA only when it is “empowered” to exercise government authority or perform a government function by “a state constitution, statute, charter, ordinance, resolution or rule.” The Ottawa 9 were not vested with government authority by a state constitution, statute, charter, resolution, or rule until they were sworn into office and the Plaintiffs do not make that contention. Instead, they argue that the Ottawa 9 should be considered a public body because they exercised government authority that was delegated to them. It is true that “a person or body that has been delegated the authority to act by a public body that itself is subject to the OMA" is a public body. Pinebrook Warren, LLC v. City of Warren, _Mich.App._; _N.W.2d __; 2022 WL 3691938 (2022) (emphasis added); citing Booth Newspapers, Inc. v. University of Michigan Bd. of Regents, 444 Mich. 211, 225; 507 N.W.2d 422 (1993). However, even if the Court accepts all of Plaintiffs’ pled facts as true and construes those facts in its favor, there was no delegation in this case. The so-called “old” BOC, as it was comprised prior to January 2023, did not grant any authority, explicitly or implicitly, to the Ottawa 9 to enact or formulate public policy in November or December 2022. Similarly, although County Administrator Shay prepared and executed a severance agreement with Director Robyn Afrik'" at the direction of the Ottawa 9, he was not legally obligated to do tn Booth Newspapers, Inc. v. University of Michigan Bd. of Regents, 444 Mich. 211; 507 N.W.2d 422 (1993) our Supreme Court held that a “public body” can be an individual or multi-member entity. 4 See Const. 1963 art Xl, § 1, 1 This was an allegation of fact by the Plaintifs and for the purposes of this motion, the Court accepts it as true. Page 4 of 6so. If Administrator Shay had declined to follow the command, the Ottawa 9 had no authority to compel him to do so or remove him as administrator. The Plaintiffs also argue that courts in Michigan have recognized the principle of de facto public bodies.'? They encourage this Court to hold that the Ottawa 9 were a de facto public body to "remedy the obvious evasion of the OMA in this case.” "> First, neither our Supreme Court nor our Court of Appeals has acknowledged the existence of a de facto public body in the context of the OMA. Second, the existence of the intent to evade the requirements of the OMA is immaterial if there is no delegation of goverment authority. Pinebrook Warren, LLC at 5. There was no delegation in this case. Finally, the Plaintiffs argue that the OMA should be liberally construed to recognize the existence of a de facto public body in this case. Doing so, they argue, would achieve the statute's legislative purposes."® Assuming, arguendo, that this were true, the Plaintiffs ask this Court to interpret the OMA in a way that conflicts with its plain language. If this Court were to do so, it would effectively modify the statute. That power rests with the Legislature, not the courts. As for Count Il of the Plaintiffs Complaint, the Ottawa 9 were not representatives of the people in November and December 2022 as they had not yet been sworn in as members of the BOC. Thus, their conduct during that period did not violate the Michigan Constitution © The Plaintiffs also reference an unreported opinion of the Superior Court of Delaware issue in 1992. This ‘opinion is not binding precedent and has no persuasive value to this Court. = Plaintiffs Brief in Opposition to Defendant's Motion for Summary Disposition, p. 13. % In ts opinion in Breighner v. Michigan High Sch. Athletic Ass'n, 471 Mich. 217, 230; 683 N.W.2d 639 (2004), our ‘Supreme Court references a de facto public body but only to state the plaintiffs’ argument in that case. * See Booth at 222-223. Page 5 of 6For these reasons, the Defendant's motion for summary disposition pursuant to MCR 2.116(C)(8) is GRANTED. The Plaintiffs’ Complaint is dismissed in its entirety. Consequently, this Court need not address the Defendant's motion pursuant to MCR 2.116 (C)(10). The Defendant's request for costs and attorney fees is DENIED. IT IS SO ORDERED. Date: July 12, 2023 = Matthew R. Kacel, P73528 Circuit Judge PROOF OF SERVICE Service ofa copy of this document was made upon al parties who have appeared, or ther attorneys of record, by the method indicated below. | declare that this statements tre tothe best of my information and beet vate P/F ob Zere ‘restos tas parry rat Page 6 of 6