LANSING, Mich. (Michigan News Source) – According to the Ottawa County Board of Commissioners’ attorney, David Kallman, a “baseless” lawsuit filed by Mark Brewer, the former chair of the Michigan Democrat Party, has been dismissed by the Michigan Court of Appeals.

The court upheld Muskegon County Circuit Judge Matthew R. Kacel’s ruling to dismiss the complaint, which alleged violations of the Open Meetings Act (OMA) by the commissioners.

What does the OMA say?

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The Open Meetings Act (OMA) mandates that public entities conduct their decision-making processes in a public forum with only a few specified exceptions allowing for closed sessions. Furthermore, any gathering involving a “quorum” of the board must take place in a public setting. Adequate notice of the meetings and a detailed agenda must be furnished as well.

At issue is a group of elected commissioners from what some call a “far-right” group called Ottawa Impact who ran under the same banner, espousing opposition to things such as masks in schools, the removal of parental rights and DEI teachings. The group was able to capture a seven-seat majority on the 11-member board.

Who are the plaintiffs?

The plaintiffs, Ottawa County residents Peter Armstrong Sr., Susan Hoekema, Jason Hunter and Jeffrey Padnos, claimed that the newly elected commissioners failed to inform the people of Ottawa County of the “governmental decisions” that were made between the day after the election on November 8th through January 3rd when they took their oath of office.

The plaintiffs said the group got together and acted as a “de facto public body” and “made public-policy decisions to be implemented once they assumed office”

Ottawa Co. Boards’ attorney argues clients had no power before January 3rd.

Kallman argued earlier in the year, “You don’t take a position or hold the power until you take the oath of office. There are no de facto legislators. You are either in the position or you’re not in the position. Our clients had no authority or power to act prior to Jan. 3.”

Judge Kacel had agreed saying that a group becomes a public body for the purposes of 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.’”

No legal basis for plaintiff’ claims.

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In a unanimous published decision, the Court of Appeals affirmed the dismissal of the lawsuit, emphasizing the lack of legal basis for the claims.

In his opinion, Appellate Judge Michael J. Riordan acknowledged that the Ottawa Commissioners did not assume office until January 3, 2023. The Court agreed that before this date, they did not qualify as public officials under the OMA and were not subject to its requirements.

Only public bodies have to comply with OMA rules.

The OMA specifically applies to board members of a “public body” vested with governmental authority or functions. Before January 3rd, the Commissioners lacked such authority, only acquiring it upon taking the oath of office.

Taking the oath is a prerequisite for a public official to commence their duties, as supported by a prior Attorney General opinion. Furthermore, the OMA specifies that only “members elected and serving” have the authority to act, and the new county commissioners, despite being elected, could not serve until January 3rd.

No power was delegated to newly elected commissioners before taking office.

The Court of Appeals also affirmed that the prior Board of Commissioners had not delegated any authority to the incoming members, rendering them devoid of power or authority as commissioners before January 3rd.

Kallman said that Mr. Brewer’s claim that the Commissioners violated the OMA before assuming office lacked substance and merit as it was impossible for any Commissioner, not being a public official or board member until January 3rd, to have violated the OMA through any pre-office actions. He went on to say that all county business conducted since January 2023 has been transparently carried out at properly noticed public meetings.

In addition, Kallman said in a press release after the Court of Appeals decision, “Mr. Brewer and his political allies attempted to weaponize the legal system to attack duly elected officials for simply following through on their campaign promises, all at the expense of the taxpayers of Ottawa County. We are pleased that the Court of Appeals unanimously affirmed Judge Kacel’s decision and saw through this nakedly partisan lawsuit.”

Michigan AG Nessel doesn’t like the ruling and vows to change OMA policy.

After an exhaustive investigation, Michigan Attorney General Dana Nessel had also previously concurred that the County Board had not violated the OMA or any other state law. Nessel, however, said that they violated the “spirit” of the OMA and wants changes made to the rules after not being able to find an “actionable violation” against a political party in opposition to her own.

Nessel called their actions “egregious” and went on to say, “The actions of some of the members of the Ottawa County Board of Commissions clearly demonstrate a violation of the spirit of the Open Meetings Act and a blatant violation of public trust and the tenets of government transparency.”

Nessel continued, “It’s apparent that certain incoming members of the board met prior to the Jan. 3, 2023, meeting to discuss the motto change, termination of the public health officer, corporation counsel, elimination of the DEI program and hiring of a new legal counsel, and this was all done outside of the public view and to execute their will without any public interference.”

Nessel wants changes made the OMA including re-defining the term “public official” to include people who have been elected or appointed to public office but not yet been sworn in.