Wexford County Prosecuting Attorney v. Pranger

• Decision Date: 09 May 1978
• Docket Number: Docket No. 77-2535
• Citation: 83 Mich.App. 197,268 N.W.2d 344
• Parties: WEXFORD COUNTY PROSECUTING ATTORNEY, Plaintiff-Appellee, v. Robert PRANGER, Deanne Frier, Darrell Becker, Walter Grubba and Harold Flynn, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 344

268 N.W.2d 344

83 Mich.App. 197

WEXFORD COUNTY PROSECUTING ATTORNEY, Plaintiff-Appellee, v. Robert PRANGER, Deanne Frier, Darrell Becker, Walter Grubba and Harold Flynn, Defendants-Appellants.

Docket No. 77-2535.

Court of Appeals of Michigan.

May 9, 1978.

Released for Publication Aug. 1, 1978.

Edward W. TenHouten, Cadillac, for defendants-appellants.

Burton A. Hines, Jr., Pros. Atty., Cadillac, for plaintiff-appellee.

Before WALSH, P. J., and MAHER and BEASLEY, JJ.

BEASLEY, Judge.

This case involves interpretation of the Open Meetings Act of 1977. ¹

At the regular meeting of May 9, 1977, the Cadillac City Commission recessed and held a closed meeting to discuss the city residency policy for city employees. The closed meeting, which lasted slightly over an hour, was held at the request of the city manager with the approval of the city attorney. Then the commission resumed in open meeting, announced a new residency policy and indicated an ordinance would be formulated to implement the policy.

In 1967, the city had adopted a residency policy which permitted municipal employees to reside in four adjoining townships in addition, of course, to residency in the city.

In 1974, in a collective bargaining agreement obtained by way of statutory compulsory arbitration, the police officers association succeeded in getting permission to reside in four additional townships outside of the city. In March, 1977, a fireman sought permission to reside permanently in Herring Township, which had been one of the four townships in which residence was permitted under the 1967 policy.

Although the labor contract with the firemen does not cover residency, the 1967 policy had been altered previous to the labor contract to prohibit firemen from living outside the city.

On May 24, 1977, plaintiff prosecutor commenced action against defendant city commission for a declaratory judgment limiting closed sessions in these circumstances to the time of actual negotiations, invalidating the policy resulting from the closed session and enjoining noncompliance.

Defendants filed a motion for summary judgment, plaintiff answered and also requested summary judgment. The parties agreed the case could be decided on the pleadings and exhibits, and the trial court then rendered an opinion that the closed session violated the open meetings statute and that an injunction would be granted preventing "further discussion on ordinance matters under the guise of collective bargaining negotiations".

Defendants appeal as of right.

The issues to be resolved are: was the closed session of the Cadillac City Commission on May 9, 1977, at which a new residency policy for city employees was formulated, held in violation of Michigan's Open Meetings Act, and, if so, do the facts justify issuance of an injunction?

Michigan's new Open Meetings Act replaces the repealed 1968 statute which had required certain governing bodies to be open to the public at any meetings where public action was taken. The new sunshine law ² provides that all meetings of the public bodies described in the statute shall be open to the public. The only exceptions where the specified public bodies may meet in closed session are the eight situations defined in section 8. ³

In some states, the legislatures have expressed in their statutes a desire that their new sunshine laws be interpreted liberally in favor of openness. ⁴ While the Michigan Legislature has not chosen to expressly so provide, in the light of the provisions newly enacted and of the legislative history, ⁵ we interpret the new open meeting legislation with similar liberality. In so doing, we construe the closed session exceptions strictly to limit the situations that are not open to the public.

At issue here is only subsection (c) of section 8, which provides:

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

"(c) For strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement when either negotiating party requests a closed hearing." ⁶

In the within case, the stated reason for the closed session was to discuss the matter of residency of municipal employees, including policemen and firemen, each of which had separate labor contracts which did not expire until December, 1977. Immediately following the closed meeting, the commission resumed the open meeting and announced a new policy, requiring all city employees to reside in the city as of January 1, 1978, except those then living outside the city.

As a result of the trial court judgment and injunction, no further action has been taken by defendant commission.

We are not without sympathy for the plight of the legislative bodies of home rule cities and their attorneys in dealing with required residency of municipal employees questions. ⁷ The recent history of residence requirements as a condition of municipal employment indicates it has become a mandatory subject of collective bargaining.

We are also aware that with respect to police unions and fire unions, where collective bargaining reaches an impasse, compulsory arbitration is available to impose a labor contract on the parties by operation of law. ⁸ The labor contract between Cadillac police officers and the City of Cadillac was arrived at by compulsory arbitration, which labor contract contains an expanded residence provision, i. e., four additional townships were added to the four specified in the 1967 policy. ⁹ It seems safe to conclude that the residency provision in the labor agreement resulting from compulsory arbitration was imposed over the objection of and against the wishes of the City of Cadillac.

Against this background, we believe that defendant commissioners should, at some stage, be permitted to meet in closed session to discuss and arrive at strategy for its collective bargaining position relating to residency of municipal employees without being required to disclose every innuendo and consideration to the adversary unions. We would not consider such a desire to be a guise to avoid compliance with the sunshine statute.

At the same time, we indicate our whole-hearted approval of the objectives of the open meeting law.

In Florida, the supreme court has interpreted that state's statute as providing that preliminary labor negotiations may be conducted in private. ¹⁰ It may be that our Legislature should broaden the exception in our statute to permit closed sessions to formulate collective bargaining plans at any time, but we consider that a legislative matter better decided within the framework of the legislative process.

As indicated, we believe the Michigan Open Meetings Act of 1977 is entitled to a broad interpretation to promote openness in government.

We interpret section 8(c) to permit closed strategy sessions only when negotiation of a labor agreement is in progress or about to commence. In the within case, there was involved a mandatory collective bargaining subject. Collective bargaining was not to begin until August for renewal of the labor contract which was to expire December 31. Under the circumstances, we do not consider the May meeting of the city commission qualified for exemption from the provisions of the Open Meetings Act. We interpret negotiation sessions under section 8(c) to refer to actual collective bargaining sessions between employer and employee.

Insofar as the declaratory judgment finds the closed session of May 9, 1977, in violation of the open meetings statute, we affirm.

As to the question of whether the facts in the within case justify issuance of an injunction, we note that injunctive relief is an extraordinary remedy which issues only when justice requires and there is not adequate remedy at law, and when there is real and imminent danger of irreparable injury.

On the record before us, we decline to find defendant commissioners' actions a guise or a subterfuge. On the contrary, we believe defendant commissioners acted in good faith in reliance upon advice from their city attorney. ¹¹

Under the circumstances of this case, we see no reason to continue the injunction. We assume defendant commissioners will comply with the open meetings law as its meaning unfolds. The injunction will be vacated.

AFFIRMED in part, REVERSED in part; no costs, a public question being involved.

MAHER, Judge (concurring in part, dissenting in part).

I dissent from that portion of the majority's opinion which vacates the injunction. The plain language of the Open Meetings Act persuades me that the trial court should be affirmed in full.

In M.C.L. § 15.271; M.S.A. § 4.1800(21), the act provides that if a public body is not complying with the act, the prosecuting attorney of the county in which the public body serves may commence a civil action to enjoin further noncompliance with the act.

The majority agrees that the act has been violated by defendants' noncompliance. Yet my colleagues deny the specific relief made available in the statute. They do not and cannot say that the injunction was improperly granted, for it was not. Rather, the majority apparently puts its faith in the defendants and assumes they will comply with the Open Meetings Act. That relief, if one may call it such, is, however, not the relief afforded by the statute nor is it the relief requested by the prosecuting attorney.

The majority cites no proper reason for its vacation of the injunction. The statute provides for injunctive relief when a public body fails to comply with the act. The injunction against the members of the Cadillac City Commission enjoining further noncompliance with the act should be continued.

1 M.C.L. § 15.261 et seq.; M.S.A. § 4.1800(11) et seq., effective March 31, 1977.

2 The identification of sunshine with open government was a result of Fla.Stat.Ann.Sec. 286.011, which is entitled "Government in the Sunshine Law". The designation apparently is an attempt to characterize government under the...