University of Michigan regents routinely violate state's open meetings law, lawsuit says

MICHIGAN — Two newspapers have filed a lawsuit against the University of Michigan Board of Regents, alleging the elected body routinely violates the state’s Open Meetings Act when it meets for “informal” closed-door meetings to discuss issues about the institution.

According to the lawsuit filed Friday by The Detroit Free Press and The Lansing State Journal, the Regents meet publicly each month to vote on issues that were already decided in private. The votes are typically unanimous and are approved without deliberation or debate.

Between January 2013 and February 2014, the Regents held public discussions for 12 of the 116 issues it voted on, according to the newspapers.

“These numbers establish clearly that the Regents do, in fact, routinely discuss the issues they must decide, and do routinely make their decisions about the University of Michigan’s governance, all behind closed doors, out of the public’s view, without public accountability and in violation of the state’s open meetings act and its constitutional obligations,” the lawsuit alleges.

While the Michigan Constitution mandates that the governing bodies of the state’s public universities must meet in public for “formal sessions,” the Regents get around that requirement by labeling any other meeting as “informal,” according to the Free Press. However, they are also given discretion to decide what constitutes an “informal” meeting and whether those meetings are open to the public.

Rick Fitzgerald, a University of Michigan spokesman, said the institution has not yet been served with the lawsuit and declined to comment any further.

Herschel Fink, an attorney representing the newspapers, said public universities in the state have increasingly deliberated in private since a 1999 Michigan Supreme Court ruling. In that case, two newspapers filed suit alleging the Michigan State University Board of Trustees had illegally closed meetings when searching for a new president.

The newspapers lost the case and the state Supreme Court ruled that public university boards are not bound by the state’s open meetings law when searching for a new university president. Ever since, university boards have applied the decision broadly and hold they are exempt from the state’s open meetings law generally, Fink said.

While Fink argues the state Supreme Court ruling applies only to presidential searches, he said universities are “latching onto” one generalized statement in the opinion and claim constitutional autonomy from the state’s Open Meetings Act.

The state Supreme Court majority stated that it was specifically ruling on the Open Meetings Act’s application to public universities “in the context of presidential searches” at least eight times, Fink said. However, the opinion continued: “given the constitutional authority to supervise the institution generally, application of the OMA to the governing boards of our public universities is likewise beyond the realm of legislative authority.”

In the lawsuit filed on Friday, Fink said the newspapers will argue that this statement is non-binding and that requiring university boards to follow the requirements of the state’s open meetings law in non-presidential contexts “in no way infringes upon its constitutional autonomy.”

“These folks are totally unaccountable to anyone for how they conduct their business and that’s pretty outrageous,” Fink said.

The lawsuit also alleges that the Regents acted illegally when they held meetings out of state, therefore inaccessible to Michigan citizens. In January 2013, seven of the eight Regents and the university’s president met in Los Angeles, Calif., to discuss the future of higher education and fundraising and to meet with leaders from other universities. In January 2014, the Regents met in New York City.

The Regents’ meetings in New York were “pre-planned, quorum, organized meetings to gather information and deliberate toward decisions on the future of the University of Michigan,” according to the lawsuit. The state’s open meetings law, however, requires that all meetings of a public body “shall be open to the public and shall be held in a place available to the general public.” A public agenda was not made available for the Regents’ meeting in New York, and the public was not notified of the meeting, the lawsuit alleges. The public and members of the press, including the Free Press and the State Journal, were not permitted to attend the meetings.

While Fink said he expects the “long battle” will eventually appear before the state’s Supreme Court, the issue is also being scrutinized from the state legislature. A proposed joint resolution, which Fink said is currently active in the state’s House of Representatives, aims to amend the state constitution to make clear public university boards are bound by the state’s open meetings law.

Contact Keierleber by email or at (703) 807-1904 ext. 123.