Booth Newspapers, Inc. v. Wyoming City Council, Docket No. 101847

• Decision Date: 07 July 1988
• Docket Number: Docket No. 101847
• Parties: , 16 Media L. Rep. 1321 BOOTH NEWSPAPERS, INC., a Michigan corporation, d/b/a The Grand Rapids Press, Plaintiff-Appellee, Cross-Appellant, v. WYOMING CITY COUNCIL, Defendant-Appellant, Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 695

425 N.W.2d 695

168 Mich.App. 459, 16 Media L. Rep. 1321

BOOTH NEWSPAPERS, INC., a Michigan corporation, d/b/a The

Grand Rapids Press, Plaintiff-Appellee, Cross-Appellant, v. WYOMING CITY COUNCIL, Defendant-Appellant, Cross-Appellee.

Docket No. 101847.

Court of Appeals of Michigan.

Submitted Aug. 19, 1987.

Decided May 16, 1988.

Released for Publication July 7, 1988.

Miller, Johnson, Snell & Cummiskey by James S. Brady and Kenneth L. Jacobs, Grand Rapids, for plaintiff-appellee, cross-appellant.

Garlington, Sluiter & Agents by Wm. J. Garlington and Jack R. Sluiter, Wyoming, for defendant-appellant, cross-appellee.

Miller, Canfield, Paddock & Stone by Roderick K. Daane, Ann Arbor, amicus curiae, for the Michigan Mun. League.

Before MacKENZIE, P.J., and DOCTOROFF and KINGSLEY, ^* JJ.

KINGSLEY, Judge.

Following a bench trial, the trial court found that defendant, Wyoming City Council, violated the Open Meetings Act (OMA), M.C.L. Sec. 15.261 et seq.; M.S.A. Sec. 4.1800(11) et seq., on four occasions between July 28, 1986, and April 14, 1987. The court issued a permanent injunction, awarded plaintiff attorney fees and costs of $23,831.02 and retained jurisdiction to supervise compliance with its order.

Defendant appeals as of right, claiming that no violations occurred; plaintiff cross-appeals seeking a modification of the award for attorney fees and costs. We affirm the trial court's findings on the OMA violations, but modify the award for attorney fees and costs.

The meetings in question were held during a time when defendant was considering, in conjunction with proposed water system improvements, whether to participate with the City of Grand Rapids in a joint study to determine the feasibility of constructing a joint water pipeline from Lake Michigan. Defendant was also preparing to renegotiate its twenty-year-old contracts with its wholesale water customers. Because of the potential costs involved and the rates to be charged, the issue had been characterized as "politically explosive."

Under the existing contracts, the City of Wyoming supplied water to Ottawa County and other municipalities at wholesale water rates. While the City of Wyoming owned the existing pipeline, Ottawa County had a fifteen percent interest in its capacity. Ottawa County was exceeding its ownership capacity in using the system, and discussions were held regarding an increase in its ownership to as much as forty-two percent. All of these water matters were interwoven, at least to the extent that improvements or expansions to the existing water systems would affect water rates.

To assist the City of Wyoming, the city council resolved on May 14, 1986, to designate William Halliday, a former city attorney, as special water counsel. Halliday was hired to assist an engineering firm, CH2M Hill, with a cost-of-service rate study and to renegotiate the city's contracts with its wholesale customers.

On July 23, 1986, Halliday sent to the city council a letter labeled "confidential" and "private" which listed various issues he felt should be discussed before further consideration was given to the proposed water improvements. On July 28, 1986, the city council convened for a special meeting after its regularly scheduled committee-of-the-whole meeting which had been open to the public. The city council then voted to retire into closed session to discuss the agenda contained in Halliday's July 23, 1986, letter. At the end of that closed session, the council scheduled another closed session for August 11, 1986, to discuss further the same matters.

Following the closed session on August 11, 1986, the city council reconvened a public meeting and, with virtually no discussion, unanimously passed two resolutions. The first resolution authorized the mayor and city clerk to contract with CH2M Hill concerning a joint pipeline study. The second resolution authorized the mayor and city clerk to contract with CH2M Hill to design certain water system improvements. Douglas Guthrie, a reporter for the plaintiff newspaper, attended the public meetings and wanted to know what occurred in closed session. Guthrie was told that the closed sessions were held to discuss a legal opinion and were shielded by the attorney-client privilege.

On August 13, 1986, plaintiff filed a complaint in the Kent Circuit Court, alleging that the city council violated the OMA, seeking injunctive relief, and requesting attorney fees and costs. On September 12, 1986, the trial court issued a preliminary injunction prohibiting meetings in violation of the OMA, requiring certain documents to be turned over to the court for in-camera review, and requiring electronic recording of all future executive sessions of the city council.

On February 13, 1987, Halliday issued an eight-page letter to the city council labeled "Privileged and Confidential Communication from Special Legal Counsel." The letter related to the capacity interest of Ottawa County in the Wyoming water pipeline system and the legal requirements for rate charges to the wholesale water customers of the City of Wyoming. Halliday concluded his letter by stating he wished to "expand upon and clarify the foregoing issues" at a meeting of the city council.

The city council met in closed session on February 16, 1987, to discuss the letter. Pursuant to the trial court's order, a transcript of the meeting was made and turned over to the court. The transcript revealed that, in addition to discussing the opinion letter, the city council was polled by Halliday and asked to "nod their heads" if they were willing to sell additional capacity to Ottawa County and if they would authorize him to take a certain position regarding the rate-making basis for the new contract.

The next significant set of meetings were luncheon meetings held at a restaurant on April 13 and 14, 1987. According to Halliday, the luncheon meetings were held so he could explain the status of a disagreement he had with the city attorney regarding the city's contract with Ottawa County and get a sense from individual council members as to how he should be proceeding in his negotiations. The same three city staff members met first with the mayor and two council members, and then with two other council members the next day. Described as "mini-meetings" in the proceedings below, neither meeting, alone, had a sufficient number of council members attending to constitute a quorum. The two-day total, however, was sufficient to constitute a quorum.

The trial court found that the closed sessions held on July 28, 1986, August 11, 1986, and February 16, 1987, as well as the two mini-meetings held on August 13 and 14, 1987, violated the OMA. The relief granted included a permanent injunction prohibiting the city council from holding future closed sessions in violation of the OMA, deciding any issue based upon an attorney's legal advice in closed session, conducting informal polls in closed session, and holding mini-meetings for the purpose of avoiding the OMA or the court's order that closed sessions be transcribed. In addition, the court ordered that the entire record, including all trial transcripts, closed session transcripts, deposition transcripts and exhibits, be open to public inspection. On June 30, 1987, the trial court found the total attorney fee submitted by plaintiff's counsel to be reasonable and necessary, but reduced it by fifty percent because "rough justice and equity requires some relief" to the taxpayers of the City of Wyoming.

The issue which is preliminary to all other issues raised on appeal is whether the trial court construed Sec. 8(h) of the OMA too narrowly in concluding that the OMA only authorized closed sessions to discuss written legal opinions. The city council argues that Sec. 8(h) should be construed as authorizing closed sessions on any matters shielded by the common law attorney-client privilege. We disagree.

The purpose of the attorney-client privilege is to allow a client to confide in his or her attorney secure in the knowledge that the communication will not be disclosed. Kubiak v. Hurr, 143 Mich.App. 465, 372 N.W.2d 341 (1985). This privilege, which attaches to confidential communications made for the purpose of obtaining legal advice on some right or obligation, may be asserted by either the attorney or the client. Id., at pp. 472-473, 372 N.W.2d 341. This is distinguishable from the OMA, which has as its purpose providing openness and accountability in government and is interpreted to accomplish this goal. Esperance v. Chesterfield Twp., 89 Mich.App. 456, 463, 280 N.W.2d 559 (1979). The OMA provides, in pertinent part:

"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.

"(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." M.C.L. Sec. 15.263; M.S.A. Sec. 4.1800(13).

"Sec. 8. A public body may meet in a closed session only for the following purposes:

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"(h) To consider material exempt from discussion or disclosure by state or federal statute." M.C.L. Sec. 15.268; M.S.A. Sec. 4.1800(18).

Because a strict construction is given to closed-session exceptions so as to limit the situations which are not open to the public, Wexford Co. Prosecutor v. Pranger, 83 Mich.App. 197, 268 N.W.2d 344 (1978), we must reject the city council's argument that Sec. 8(h) authorizes closed sessions on any matter shielded by the attorney-client privilege. The language of Sec. 8(h) is clear. The only material which can be considered in closed sessions under this provision is that exempt from discussion or disclosure by a state or federal s...