Column: Open Meetings and Marijuana

Councilmember Rapundalo's "clarification" lacks clarity

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.


  1. September 12, 2010 at 8:11 pm | permalink

    Dave- Fine investigative reporting. Thanks for your concern regarding the honoring of the OMA.

  2. By Nick
    September 12, 2010 at 8:25 pm | permalink

    Thank you for pursuing this.

  3. By Paul
    September 12, 2010 at 11:34 pm | permalink

    I agree, thanks for pursuing this issue!

  4. September 13, 2010 at 6:49 am | permalink

    The use of closed, or “executive” sessions puts a great deal of burden on members of the body (in this case, Council) because they are subject to legal sanction if they reveal discussions from those sessions. (I’m not sure whether it would be a civil or criminal infraction, but scary enough.) I am familiar with the inhibition that this causes from my experience as a member of the BOC.

    Thus, any leakage of regular business into these closed sessions is a real concern because it also exerts an inhibition on the council member from discussing the subject at all lest s/he venture into the area covered by the executive session.

    One could argue that the practice, previously highlighted by the Chronicle, of having attorney advice that is not in written form given to council, is essentially the equivalent of exerting the same pressure as a closed session, and that has also been a worrisome tendency.

    Thank you for continuing to address these issues that affect our council’s transparency and accountability.

  5. By mr dairy
    September 13, 2010 at 9:29 am | permalink

    I find it extremely troubling that some folks on council and the city administration, and it always seems to involve a select few, treat the rules and laws so casually. Lord Acton was right.

  6. By Mark Koroi
    September 13, 2010 at 1:41 pm | permalink

    I wish to thank the Ann Arbor Chronicle for this fine example of diligent and thorough investigative reporting.

    Legal action may be necessary to test the legality of the actions described in the article.

    Adverse adjudications are a deterrent to future violations.

  7. September 13, 2010 at 8:15 pm | permalink

    Exit out the back door was previously noted here:


    which naturally is an argument for staking out the back door as well as the front door at adjournment time.

  8. September 13, 2010 at 8:16 pm | permalink

    Vivienne, were you ever told that if something was illegally discussed in closed session, it was still illegal for you to discuss it outside closed session?

    For example, suppose that in closed session the BOC wandered into a discussion of the City Council’s alleged general ineptitude and paralysis. Such a discussion would obviously be illegal, but suppose it happened anyway. Stuff happens.

    Could you talk about that discussion outside closed session?

  9. By Ruth Kraut
    September 13, 2010 at 10:02 pm | permalink

    Push on, Chronicle! I’ll look forward to reading the next installment.

  10. September 13, 2010 at 10:21 pm | permalink

    Re #8: it was never framed in that way but the interdiction was total. For example, once we were asked to take a straw vote (illegal since all final decisions should be in public) but I could never discuss it, though I did consult with the corporation counsel about it, to no avail. I don’t see how a councilmember could ever feel comfortable in discussing even a potentially illegal subject outside a closed meeting unless they were willing to make a huge issue of it.

    (Please do note that I did not describe the subject or discussion related to that straw vote.)

  11. By William Clark
    September 14, 2010 at 9:05 am | permalink

    Bite them like a barracuda!

  12. By David
    September 14, 2010 at 11:32 am | permalink

    Glad someone is monitoring city council closely.

  13. September 18, 2010 at 5:34 pm | permalink

    It seems quite obvious that the council violated the OMA.


    Sec. 7(1) of the OMA mandates that: “the purpose or purposes for calling the closed session shall be entered into the minutes of the meeting at which the vote is taken.

    Sec. 7(2) says that “A separate set of minutes shall be taken by the clerk or the designated secretary of the public body at the closed session. These minutes shall be retained by the clerk of the public body, are not available to the public, and shall only be disclosed if required by a civil action filed under section 10, 11, or 13.”

    Section 3(2) require all “decisions of a public body shall be made at a meeting open to the public.”

    The Chronicle’s reported that councilmember Stephen Rapundalo acknowledged that the council discussed a possible medical marijuana moratorium during their July 19 closed session, in which they had “given the city attorney a directive to draft a moratorium so that it could be brought to that evening’s (Aug 5) meeting.”

    I’m wondering what pending litigation the council was discussing in closed session.

    I’ve prevailed in several OMA lawsuits against local officials in NW MI and the judge in those cases forced them to identify the actual case caption in their motion to go into closed session because they always did it so lackadaisically.

    The only way to possibly find out what happened during that closed session – and what decisions they may have made during it – is to file a lawsuit in circuit court and get a judge to force them to release the closed session minutes.

    It appears as though the council is refusing to admit and voluntarily cure their violations of the OMA so someone needs to pony-up and sue them to get some answers.

    It only cost $150.00 to file a complaint in circuit court.

    Eric L. VanDussen –