Booth Newspapers, Inc. v. University of Michigan Bd. of Regents
| Decision Date | 21 January 1992 |
| Docket Number | 120543,Docket Nos. 120478 |
| Citation | 481 N.W.2d 778,192 Mich.App. 574 |
| Parties | , 73 Ed. Law Rep. 786, 20 Media L. Rep. 1154 BOOTH NEWSPAPERS, INC., d/b/a The Ann Arbor News, and The Detroit Free Press, Inc., Plaintiff-Appellant, v. UNIVERSITY OF MICHIGAN BOARD OF REGENTS, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Dykema Gossett by E. Edward Hood and Jonathan D. Rowe, Ann Arbor, for Booth Newspapers, Inc.
Honigman Miller Schwartz & Cohn by Herschel P. Fink and Michael A. Gruskin, Detroit, for Detroit Free Press, Inc.
Hooper, Hathaway, Price, Beuche & Wallace by Roderick K. Daane, Ann Arbor, for University of Michigan Bd. of Regents.
Before HOOD, P.J., and JANSEN and ALLEN, * JJ.
Booth Newspapers, Inc., doing business as The Ann Arbor News, and The Detroit Free Press, Inc., brought suit against the Board of Regents of the University of Michigan, alleging violations by defendant of the Open Meetings Act (OMA), M.C.L. Sec. 15.261 et seq.; M.S.A. Sec. 4.1800(11) et seq., and the Freedom of Information Act (FOIA), M.C.L. Sec. 15.231 et seq.; M.S.A. Sec. 4.1801(1) et seq. Plaintiffs sought both declaratory and injunctive relief against the procedures employed by the board in selecting the current president of the University of Michigan. All relief requested by plaintiffs was denied by the trial court, and summary disposition was granted in favor of defendant. Plaintiffs appeal as of right.
In April 1987, Harold Shapiro resigned as president of the University of Michigan, effective January 1988. In May 1987, the board, consisting of eight members, began the process of selecting a new president by appointing itself as the Presidential Selection Committee (PSC). Regent Brown was appointed chairman of the PSC, and the sole purpose of the PSC was to find a new president. In addition, three advisory committees were formed to assist the PSC: a faculty committee, a student committee, and an alumni committee.
By the fall of 1987, a list of 250 potential candidates had been compiled, although no formal "applications" had been submitted by the candidates. Rather, most of the candidates had been recommended by third persons, who advised the PSC of the candidates' qualifications. The PSC's administrative secretary compiled a notebook of information relating to the candidates, and the board members considered the materials in the notebook to be the applications of the candidates.
A procedure utilizing a series of "cuts" was employed to narrow the list of candidates from 250 to one. The first cut reduced the number of applicants from 250 to 70. Although defendant contends that Regent Brown alone was entrusted with the authority to make the first cut, it is clear that he did so after numerous meetings between the advisory committees and subquorum groups of regents. The board avoided allowing more than five regents to be present at any one time to discuss the selection process because it otherwise would have had to conduct a public meeting under the OMA.
Brown made the cut on the basis of input from all the regents, and his decision was largely an arithmetic function rather than a matter of judgment. All the regents had an opportunity to review Brown's list of seventy candidates, and any individual regent could request that a particular candidate be retained despite Brown's decision to eliminate the candidate from consideration.
It is also important to note that, in addition to the meetings between the advisory committees and subquorum groups of regents, the input received by Brown resulted from "round the horn" telephone calls and informal subquorum gatherings of less than five regents. The acknowledged purpose of the telephone calls and subquorum meetings was to achieve the same intercommunications that could have been achieved in a full meeting of the board.
The second cut utilized essentially the same procedure as the first cut, and the list of candidates was reduced from seventy to thirty. Again, Regent Brown engaged in telephone discussions with the other regents, and all the regents participated in the narrowing process. Subquorum-sized groups of regents met to discuss the candidates and to achieve an understanding with regard to the desired candidates. According to one regent, candidates were rated, the ratings were tallied and circulated, and Brown discussed the results privately with each of the regents to insure that the list of thirty would be acceptable to all the regents.
The third cut was made by the candidates themselves as a result of telephone calls from Brown. Brown called the candidates on the list of thirty and asked if they were interested in the position of president and in a "visit" from some of the regents. Twelve of the candidates expressed their desire to remain on the list.
In March and April 1988, Brown set up "visits" between the applicants and groups of two, three, or four regents. The visits were to take place in the candidates' home cities, and the regents were informed by the candidates that they would like their candidacy to remain confidential.
Discussions were held between the candidates and the visiting groups of regents regarding the attractiveness of the position and the candidates' qualifications and interests. Following these visits, some of the regents submitted written reports of their impressions of the candidates to the other regents. Other regents telephoned Brown with their impressions.
The fourth cut came following a series of closed meetings held by the board to discuss the twelve candidates. The board believed that it was now able to meet in a closed session, because all twelve candidates had requested confidentiality. Brown reduced the list of candidates from twelve to five following the closed-session meetings. Although the regents contend that no voting occurred at these closed meetings, they do agree that a general consensus was reached and that Brown's list of five candidates reflected the views of the eight regents as a whole. The views of all regents were weighed to arrive at the fourth cut.
Brown next formed five interviewing committees, consisting of four regents and representatives from the faculty, student, and alumni committees. The interviews were conducted in private, and at the end of this interviewing process, all but one of the regents had personally spoken with each of the remaining candidates. The interviewers submitted reports on their views of the candidates, and those regents excluded from the interview of a particular candidate were apprised of what had occurred at the interview.
On May 20, 1988, the board resolved to form a "nominating committee" for the purpose of deciding which candidates would be placed in nomination for action by the board. On May 24, 1988, before any meeting of the nominating committee, seven of the regents held a closed meeting to discuss the results of the interviews and to make their views on each of the remaining candidates known. Although the board urges that no voting took place at this time, a consensus was reached that two of the candidates were preferred over the other three.
Immediately following this closed meeting, the nominating committee met, considered the entire list of candidates, and decided that only the two preferred candidates would remain in consideration. This was the fifth cut. Following this decision, the nominating committee interviewed the two remaining candidates and unanimously decided to recommend one to the board. The remaining candidate, James Duderstadt, was interviewed in an open session by the regents and selected faculty, student, and alumni representatives.
After this open interview, the nominating committee met in a closed session, and thereafter recommended that Doctor Duderstadt be nominated. The board then reconvened in a public session and voted to elect Duderstadt president of the University of Michigan.
The trial court granted defendant's motion for summary disposition, holding that the OMA and the FOIA did not apply to defendant's search for a new president for the University of Michigan because of the sensitive nature of the personnel search conducted by the board. The trial court found the acts to be inapplicable, because disclosure of the identity of candidates under consideration would be deleterious and inimical to the public good in the effort being made by defendant to select the best qualified person for that position. We affirm in part and reverse in part.
The purpose of the OMA is to promote openness and accountability in government; it is therefore to be interpreted broadly to accomplish this goal. Booth Newspapers, Inc. v. Wyoming City Council, 168 Mich.App. 459, 466, 425 N.W.2d 695 (1988); Detroit News, Inc. v. Detroit, 185 Mich.App. 296, 300, 460 N.W.2d 312 (1990). Because the OMA is interpreted liberally in favor of openness, we construe the closed-session exceptions strictly to limit the situations that are not open to the public. Wexford Co. Prosecutor v. Pranger, 83 Mich.App. 197, 201, 268 N.W.2d 344 (1978); Detroit News, 185 Mich.App. p. 302, 460 N.W.2d 312; Wyoming, 168 Mich.App. p. 467, 425 N.W.2d 695. The burden of establishing that a meeting is exempt from the OMA is on defendant. Detroit News, 185 Mich.App. p. 301, 460 N.W.2d 312.
The OMA requires that all meetings of a public body be open to the public. M.C.L. Sec. 15.263(1); M.S.A. Sec. 4.1800(13)(1). The OMA defines a meeting as the convening of a public body at which a quorum is present to deliberate or render a decision on public policy. M.C.L. Sec. 15.262(b); M.S.A. Sec. 4.1800(12)(b). There is no doubt that defendant is a public body as defined in the OMA. M.C.L. Sec. 15.262(a); M.S.A. Sec. 4.1800(12)(a).
Defendant contends, however, that it did not violate the OMA because the subquorum activities of its various committees did not constitute a...
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