Column: Open Meetings and Marijuana

During the Ann Arbor city council’s Aug. 5, 2010 deliberations on a medical marijuana moratorium, councilmember Stephen Rapundalo (Ward 2) described how the council had discussed the issue and given the city attorney a directive to draft a moratorium so that it could be brought to that evening’s meeting. Later that night, Rapundalo told The Chronicle he’d been referring to a discussion that took place during a closed session on July 19.

If accurate, Rapundalo’s original comments seem to describe a violation of the Michigan Open Meetings Act, which does not allow the council to develop legislative strategy and public policy in closed session. During council’s meeting on Tuesday, Sept. 7, Rapundalo said he may have “misrepresented” the activities of the closed session with his earlier comments, rejecting the labels “discussion” and “directive” – but still allowing that a councilmember had told the city attorney that they wanted to see legislation drafted to come before the council.

Rapundalo’s comments, even taken together with remarks made by the city attorney at the council’s Sept. 7 meeting, still leave many questions unanswered.

By way of background, at its Aug. 5 meeting, the city council approved a moratorium on the opening of medical marijuana facilities. [Chronicle coverage: "Modified Moritorium on Marijuana Passed"] The item had been added to the council’s Thursday meeting agenda late on Wednesday afternoon. Council had pushed back its usual Monday meeting that week to Thursday because of the primary elections, which were held on Tuesday, Aug. 3.

During the Aug. 5 deliberations on a medical marijuana moratorium, which the council ultimately passed that evening, Rapundalo responded to the contentions of Carsten Hohnke (Ward 5) and Margie Teall (Ward 4) that they were not aware that a moratorium would be coming before the council, or at least not that soon. Rapundalo stated:

In fact, this was discussed at our last meeting and a directive was given to the city attorney at that time to bring this forward to this meeting tonight and I believe everybody was in the room when that was indicated.

During a recess in the Aug. 5 meeting, after the council had approved the moratorium, Rapundalo told The Chronicle that what he’d described had happened during the council’s closed session – on July 19.

On its face that is a violation of the Open Meetings Act, because it indicates deliberations on a legislative strategy, which is not an allowable purpose for a closed session. Had the council discussed in open session the fact that it was contemplating action at the local level on medical marijuana legislation, the public at large – instead of only some councilmembers – would have been aware that the issue was coming forward.

Why is legislative strategy and public policy not a possible topic for a closed session? Although the Michigan Open Meetings statute provides for closed sessions based on discussion of written documents that are not required to be disclosed –  attorney-client privileged communications, for example – conversations cannot stray from a discussion of the meaning of the specific legal advice contained in the written communication. This principle has been established through settled case law. From State of Michigan v. Whitney et al:

It would be illogical to construe the attorney-client privilege exemption as authorizing a public body to evade the open meeting requirements of the OMA merely by involving a written opinion from an attorney in the substantive discussion of a matter of public policy for which no other exemption in the OMA would allow a closed meeting. See Gross v General Motors Corp, 448 Mich 147, 164; 528 NW2d 707 (1995) (statutes must be construed to prevent illogical or absurd results). To avoid this illogical result, we conclude that proper discussion of a written legal opinion at a closed meeting is, with regard to the attorney-client privilege, limited to the meaning of any strictly legal advice presented in the written opinion. The attorney-client privilege exemption does not extend to matters other than the provision of strictly legal advice.

Contrary to the understanding that many public officials seem to have about closed sessions, a closed session is not justified by simply having legal counsel present to give oral advice. The closed session exemption based on attorney-client privilege requires that there be a written document underpinning the closed session, and further, the conversation is limited to the meaning of the legal advice contained in the document, and cannot stray to include more general policy considerations or economic impacts and the like.

Last month The Chronicle – through its legal counsel, East Lansing attorney Jeffrey Hank – sent a demand letter to the city asking for remedy consisting primarily of reenacting, during an open session on Aug. 16, the closed session held on July 19. The council failed to comply with that request.

Instead, Rapundalo said during the council’s Sept. 7 meeting that he may have “misrepresented” the activities of the closed session with his earlier comments, rejecting the labels “discussion” and “directive” – but still allowing that a councilmember had told the city attorney that they wanted to see legislation drafted to come before the council. Legally, misrepresentation is a tort, or a wrong that can create a civil liability.

After Tuesday’s meeting, Rapundalo was insistent in refusing to further clarify his current version of events for The Chronicle, saying, “Listen to the tape!”

City attorney Stephen Postema also refused to speak to The Chronicle after the meeting, during which he thanked Rapundalo for clarifying his Aug. 5 statement, and insisted that no directive had been given to him. During the Aug. 5 council deliberations, however, in which Postema took active part, neither Postema nor any other councilmember present objected to the representation made by Rapundalo that a discussion had taken place and that a directive had been given with everyone in the room. Further, Postema described during the Aug. 5 meeting how he’d met with the legal representatives of marijuana dispensaries “at the direction of the council.”

One theory The Chronicle is currently weighing – as it contemplates giving direction to its own legal counsel – is that it was not only the closed session that violated the OMA. It’s possible that deliberations continued past adjournment of the council meeting. Due to a complaint lodged by The Chronicle with the city attorney, the council now has the habit of adjourning its meetings in a session open and visible to the public, so the act of adjournment is captured on camera for CTN. However, taping doesn’t continue beyond adjournment. Previously, the council had the habit of adjourning directly out of closed session – with a wink to the Open Meetings Act provided by holding ajar the door to the adjoining workroom, where closed sessions are held.

If a continuation of deliberations took place past adjournment, it would lend some insight into Rapundalo’s somewhat curious original statement that he believed everyone was in the room when a directive to the city attorney was given. If the meeting had already adjourned, then it becomes a natural question to ask: Was everyone still in the room when the discussion happened and the directive was given? And Rapundalo’s original comment would then be a less curious statement to make, because it would provide the answer to that natural question: Was everyone still there?

Continuing deliberations and decision-making past adjournment would also be an OMA violation. We’ll keep Chronicle readers posted as relevant facts emerge.