I was covering a local township Planning Commission meeting recently and one planner asked if the group could simply start emailing each other back and forth outside of meetings to create wind and solar ordinances to avoid “a four-hour meeting.”
Another planner responded with the belief that deliberating this way via text was probably OK, but not via email.
I then spoke up to explain how the Open Meetings Act works. The planners seemed genuinely interested in listening and wanting to conduct their meetings and actions correctly. (I’m not naming the specific Planning Commission — this time — as many of its members are newly appointed and I honestly believe the OMA process is new to them.)
A friendly reminder: According to the Michigan Attorney General’s OMA handbook (which all township officials should review at least a few times per year), OMA provides that “all decisions of a public body shall be made at a meeting open to the public,” and that, with limited exceptions, “all deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public.” A “consensus-building process” that equates to decision-making would fall under OMA. A “round-the-horn” process violates OMA.
How township officials communicate outside of public meetings has been on my mind a lot this past year as I continue to cover the ongoing effort of local governments to create wind and solar energy ordinances.
A recent Freedom of Information Act (FOIA) request revealed some issues.
The Cato Township Board voted 3-2 on Nov. 1 to hire the Foster Swift law firm to help with their wind ordinance. Before the vote took place, Planning Commission Chairman Phil Morrow, who was in the audience, reiterated what he said at October’s township board meeting about wanting the township to hire either Foster Swift or Mika Meyers.
“Has the board come to a recommendation?” Supervisor Larry Gilbert asked Morrow, referring to the Planning Commission (a confusing question on its own, as the township board is responsible for hiring a law firm — also, the township board voted in September to not allow the Planning Commission to meet until the township had hired a law firm).
“Larry, no, because we haven’t had a (Planning Commission) meeting (since early September),” Morrow responded. “Have some of them (planning commissioners) reached out to me? Yes, but we didn’t vote on anything.”
Based on Morrow’s comments at this meeting, I sent a FOIA the following day asking for any and all written correspondence among township board members and planning commissioners on the topic of hiring a wind ordinance law firm.
Clerk Todd Lincoln provided me with emails the township had received from each of the five law firms being considered, as well as a Sept. 28 letter from Planning Commissioner Brandi Clark-Hubbard to township board members on the topic.
Clark-Hubbard’s letter recommended hiring Foster Swift first, and Mika Meyers second. She was mostly neutral on the law firms of Bloom & Sluggett and Bauckham Sparks and she was definitely against hiring the law firm of Fahey Schultz — citing an incident involving one of Fahey’s attorneys and his apparently pro-wind wife at a Winfield Township Planning Commission meeting (as reported in the Daily News on July 23), the fact that a neighboring township’s meeting minutes referred to the Fahey law firm as an “Apex attorney,” as well as Fahey’s professional relationship with DTE Energy (which purchased Apex Clean Energy’s wind project in Isabella County).
The way Clark-Hubbard communicated her thoughts to the Cato Township Board was proper and transparent. She explained her reasoning regarding her opinions on each of the law firms, and her letter was made available to me as part of my FOIA request.
Less transparent was a series of texts.
The township clerk told me he passed on my FOIA request to Morrow, but didn’t receive anything in response, although some texts were alluded to.
“Phil says he deleted the (texted) requests,” the clerk told me. “Phil says Brandi was the only one to respond and Phil deleted all.”
I called Morrow on Nov. 4 to clarify whether there were any texts or emails between planners on the law firm topic. Morrow said he did text planners for their input but he had since deleted his text and any replies. He said his text only included the names of the law firms being considered and he texted each planner individually, not as a group.
“I said that if you feel strongly about a couple of them, then speak up, get ahold of the township board members,” Morrow told me. “If you want to speak up, make your comments.”
Since Morrow’s deleted text wasn’t available, I reached out to Clark-Hubbard and her fellow planner Quanah Striker on Nov. 5, both of whom said they hadn’t even been made aware of my FOIA request, and both of whom immediately provided me with Morrow’s text and their responses.
Behrenwald told the clerk he didn’t receive anything from Morrow, while Planning Commission Secretary Kim Carr told me she received Morrow’s text but she didn’t respond, as she believed doing so could be a violation of OMA.
“I didn’t feel like the township board was soliciting the Planning Commission’s input on who to hire or they would have sent us the law firm resumés,” Carr told me. “I didn’t think that I was a qualified person to weigh in on who we should choose to hire when I didn’t even know who the applicants were and had seen zero information about them to be able to make a qualified recommendation.
“Also, I was not comfortable responding to a one-on-one text outside of a public meeting,” Carr noted.
On Nov. 6, Morrow unexpectedly provided me with the text he had sent (the one he previously said he deleted).
Morrow’s Oct. 2 text read (unedited): “Just reaching out to each of the Planning Commission committee members of Cato Twp to see if you have a preference on who the attorney should be for the township … as the chair I want to make a recommendation on Monday to the Cato Twp Board on behalf of the Planning Commission — I am asking each of the planning commission members. Please respond back by Sunday October 3rd. Questions let me know or give me a call. It is my belief that the board will make a recommendation on Monday October 4th.
“The names that I was given as of last week are,” Morrow wrote, before listing the five law firms being considered.
Striker responded to Morrow via text that same day.
“Per the research that I’ve done and trying to stay completely non biased and based on experience of the matters at hand, my vote is for Foster Swift and (attorney) Michael Homier,” Striker wrote.
“Thanks! Much appreciated,” Morrow responded.
Clark-Hubbard responded to Morrow via text on Oct. 3.
“Phil, I just emailed you a letter I sent to the board last week regarding this matter,” she wrote. “I’d like to discuss with you over the phone today after you’ve read the letter. Please let me know a good time to call. I’m available most anytime today.”
The letter referenced by Clark-Hubbard was the same letter the township gave me as part of the FOIA request.
Why should Cato Township residents care about any of this, you may be asking? I found it problematic for several reasons:
• I sent a FOIA request to a township requesting all written correspondence on a specific topic, but I didn’t receive all of it — until I repeatedly pressed the matter via emails and phone calls and Facebook messages to multiple township officials.
• A township official texted others to solicit their thoughts on a township decision and then apparently deleted those texts. While the text in question was “recovered” this time, it raises a red flag. How many other times have township officials deliberated township business via text, and how was that information archived for future reference should anyone inquire about it?
• Morrow told the clerk only one planner responded to him (Clark-Hubbard) but my results show Striker responded as well. Morrow also told me his text simply encouraged planners to contact the township board with their recommendations for which law firm to hire, but his actual text shows he was specifically requesting input from planners so that he as chairman could make an official recommendation on behalf of the Planning Commission to the township board.
• Morrow, Clark-Hubbard and Striker all communicated support for hiring Foster Swift (or Mika Myers), and that’s the law firm the township board ending up voting to hire.
Are township residents comfortable with township officials texting to communicate township business? Are residents even aware that communicating via text or social media messages outside of meetings is a thing?
I asked Jennifer Dukarski, a Michigan Press Association attorney who is well-versed in FOIA and OMA, for her thoughts.
“It is becoming more common to see public officials use text messages, social media or direct messages to communicate,” Dukarski said. “Using these channels doesn’t stop the need for transparency in our government. These type of communications remain subject to our Freedom of Information Act and their misuse could lead to possible Open Meetings Act violations. It is important for our public bodies to recognize this and to properly preserve all such messages.”
The Cato Township Board is next scheduled to meet at 7 p.m. tonight, while the Planning Commission will next meet at 5 p.m. on Dec. 15 to talk wind with their newly hired attorney.
Here’s to a healthy discussion going forward — in public.