Herald Co. v. City of Bay City

• Decision Date: 24 February 1998
• Docket Number: Docket No. 200187
• Citation: 577 N.W.2d 696,228 Mich.App. 268
• Parties: The HERALD COMPANY d/b/a The Bay City Times, Plaintiff-Appellant, v. CITY OF BAY CITY, a Municipal Corporation, Jacob Hutter, Bruce Wagner, Bruce McCandless, Tom Rhine, Boyd Boettger and Howard Asch, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 696

577 N.W.2d 696

228 Mich.App. 268

The HERALD COMPANY d/b/a The Bay City Times, Plaintiff-Appellant, v. CITY OF BAY CITY, a Municipal Corporation, Jacob Hutter Bruce Wagner, Bruce McCandless, Tom Rhine, Boyd Boettger and Howard Asch, Defendants-Appellees.

Docket No. 200187.

Court of Appeals of Michigan.

Submitted Jan. 6, 1998, at Lansing.

Decided Feb. 24, 1998, at 9:10 a.m.

Released for Publication May 22, 1998.

Braun Kendrick Finkbeiner P.L.C. by Scott C. Strattard, Saginaw, for Plaintiff-Appellant.

Allsopp, Kolka & Wackerly, P.C. by Mark A. Kolka, Bay City, for Defendants-Appellees.

Miller, Canfield, Paddock and Stone by Don M. Schmidt, Kalamazoo, amici curiae, for Michigan Municipal League Legal Defense Fund.

Sommers, Schwartz, Silver & Schwartz, P.C. by Patrick Burkett and C.F. Boyle, Jr., Southfield, amici curiae, for Public Corporation Law Section, State Bar of Michigan.

Before FITZGERALD, P.J., and O'CONNELL and WHITBECK, JJ.

O'CONNELL, Judge.

Plaintiff appeals as of right the trial court's order granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(8) for failure to state a claim under the Open Meetings Act (OMA), M.C.L. § 15.261 et seq.; M.S.A. § 4.1800(11) et seq., and the trial court's finding that defendants did not violate the Freedom of Information Act (FOIA), M.C.L. § 15.231 et seq.; M.S.A. § 4.1801(1) et seq. With respect to the FOIA claim, plaintiff specifically appeals the denial of plaintiff's motion for summary disposition under MCR 2.116(C)(9). We reverse.

This matter requires this Court to resolve two separate issues. The first concerns Bay City's failure to hold open meetings and open interviews of candidates for the position of fire chief in violation of the OMA. Plaintiff, The Herald Company, doing business as the Bay City Times, argues that the procedure defendants employed when selecting a new fire chief violated the OMA because the city manager and his committee interviewed and screened applicants and then, pursuant to the city charter, the city manager recommended a candidate who was summarily appointed by the city commission. The second issue relates to an FOIA request made by plaintiff concerning records relating to the city's search for a new fire chief. Plaintiff specifically requested information pertaining to the seven semifinal candidates; defendants denied the request. On appeal, plaintiff alleges that defendants failed to state a valid defense under the FOIA. We conclude that defendants violated both the OMA and the FOIA and reverse the trial court's decision.

I

The first issue for our resolution necessitates interpretation of the OMA. Plaintiff argues that defendants improperly interviewed and screened job applicants for the position of fire chief at closed meetings, thus effectively appointing the new Bay City fire chief in violation of the OMA. The Bay City Charter provides that the city commission shall appoint a fire chief "on the recommendation of the city manager." In exercise of his duties under the charter, ¹ the city manager, defendant Bruce McCandless, established a committee of five people ² to assist him in finding a candidate whom he could recommend to the city commission. McCandless informed the city commission of the newly formed committee in a letter dated May 16, 1996. The committee helped establish hiring criteria, solicited, screened, and interviewed applicants, and advised McCandless regarding whom he should recommend for the position.

The committee screened approximately thirty-four applications and narrowed the pool to nine semifinalists. Of these, two voluntarily withdrew. The committee interviewed the seven candidates and then advised McCandless about which three candidates deserved second interviews. McCandless conducted second interviews with the three finalists; the defendants admittedly did not post notice of these interviews and conducted them in private.

On May 6, 1996, plaintiff submitted an FOIA request to defendants, asking for the "names, current job titles, cities of residence, and ages of the seven final candidates for the job of Bay City Fire Chief." On May 13, 1996, the city attorney sent a letter to plaintiff denying the request and noting, among other reasons, that the material represented intercommittee deliberations and that it was specifically exempted from disclosure by the OMA. On May 16, McCandless wrote the city commission, advising them of his recommendation for the fire chief position; McCandless recommended the appointment of Bay City assistant fire chief and acting chief Gary Mueller. Plaintiff's attorney sent another letter to the city attorney on the following day. The letter renewed the FOIA request and took exception to the closed interviews. Defendants did not respond to this letter. On June 3, 1996, in an open meeting, after proper notice, the city commission deliberated and decided to appoint Mueller to the fire chief position.

Plaintiff then filed a complaint alleging that defendants' actions were in violation of the OMA as well as the FOIA. In its allegations charging that defendants violated the OMA, plaintiff claimed that the city manager and his committee were acting as "public bodies" because they were authorized to exercise governmental authority in selecting a new fire chief. Plaintiff also alleged that the interviews constituted "meetings" under the OMA and that the city therefore should have made the meetings open to the public. The trial court ruled that defendants were not a public body under the OMA and granted defendants' MCR 2.116(C)(8) motion for summary disposition. We review the trial court's determination de novo, Pinckney Community Schools v. Continental Casualty Co., 213 Mich.App. 521, 525, 540 N.W.2d 748 (1995), and reverse.

The OMA provides that a public body, when making a decision effectuating public policy, must make the decision at an open meeting, unless there is an applicable exception. M.C.L. § 15.263(1), (2), and (3); M.S.A. § 4.1800(13)(1), (2), and (3). Therefore, in order to resolve this issue, we must determine (1) whether the city manager acted as a "public body," (2) whether there was a "meeting" of a public body, (3) whether a "decision" effectuating public policy was made by the city manager, and (4) whether any statutory exceptions are applicable. In making these determinations, we note that the "fundamental purpose" of statutory construction is to "assist the court in discovering and giving effect to the intent of the Legislature." In re Certified Question, 433 Mich. 710, 722, 449 N.W.2d 660 (1989). In order to effectuate the legislative intent regarding the OMA--facilitating public access to governmental decision making--the statute should be broadly interpreted and its exemptions strictly construed. Booth Newspapers, Inc. v. Univ. of Michigan Board of Regents, 444 Mich. 211, 223, 507 N.W.2d 422 (1993). A public body has the burden of proving that an exception exists. Booth Newspapers, supra.

A. Public Bodies

The OMA defines the term "public body" to include a "board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function...." M.C.L. § 15.262(a); M.S.A. § 4.1800(12)(a). Thus, "a key determination of the OMA's applicability is whether the body in question exercises governmental or proprietary authority." Booth Newspapers, supra at 225, 507 N.W.2d 422. If an entity is a public body, its meetings (except those falling within a statutory exception) must be open to the public and held in a place available to the general public. M.C.L. § 15.263(1); M.S.A. § 4.1800(13)(1). Similarly, its decisions must be made at a meeting open to the public, and all deliberations of a quorum of the public body must take place at a meeting open to the public. M.C.L. § 15.263(2) and (3); M.S.A. § 4.1800(13)(2) and (3).

Defendants argue that the city manager is not a public body and that the city commission is the "only legislative or governing body, public body, subject to the Open Meetings Act." Defendants also assert that if the city manager is a public body for one purpose, then the city manager is a public body for all purposes. Essentially, defendants contend that a ruling for plaintiff in this case constitutes a ruling that the city manager is a "public body" subject to the OMA in all of his official acts. We disagree.

We begin our analysis with a consideration of Booth, supra. There, Regent Paul W. Brown served as chairman of a Presidential Search Committee (PSC) that consisted of the eight members of the University of Michigan Board of Regents. Booth, supra at 215, 507 N.W.2d 422. Regent Brown took certain actions in making a "first cut" of candidates for president of the university, narrowing the number of candidates from 250 to 70. Id. at 216, 507 N.W.2d 422. The Court noted that Brown's "first cut" decision was largely an arithmetic function rather than a matter of judgment. Id. at 217, 507 N.W.2d 422. The Court went on, citing Goode v. Dep't of Social Services, 143 Mich.App. 756, 373 N.W.2d 210 (1985), to state:

The Legislature did not grant any exception to specific types or forms of committees. Therefore, delegating the task of choosing a public university president to a one-man committee, such as Regent Brown, would warrant the finding that this one-man task force was in fact a public body. As the Goode Court observed, "[w]e do not find the question of whether a multi-member panel or a single person presides to be dispositive. Such a distinction carries with it the potential for undermining the Open Meetings Act...." Id., 143 Mich.App. at 759, 373 N.W.2d 210.

Therefore, we hold that the selection of a public university president constitutes the exercise of governmental authority, regardless of whether such authority was...