Stephen R. Estey
Lauren A. Evers
Peter M. Grace
June 15, 2020
As Michigan began to grapple with the COVID-19 pandemic, it became clear that striking a balance between social distancing and conducting business as usual would not be easy. This is especially true given state laws like Michigan’s Open Meetings Act (OMA), which normally requires public bodies to make all decisions at meetings that are open to the public and held in a location available to the general public. Recognizing the need for public bodies to continue meeting while at the same time lessening the spread of the coronavirus, Governor Whitmer issued a series of executive orders permitting all public bodies in Michigan, except the state legislature, to meet during the pandemic by virtual means, including most recently, Executive Order No. 2020-75, which extended this allowance until June 30, 2020.
EO 2020-75 temporarily suspends certain requirements of the OMA during the pandemic to the extent they would require a public body to meet in a physical place or require that members of the public body be physically present at that place for the meeting. Specifically, it permits a meeting of a public body to be held electronically, including by telephonic conferencing or video conferencing, in a manner that allows participation by members of the public body and the general public. While the order temporarily suspends certain requirements under the OMA, it also includes numerous requirements that a public body must follow when conducting a virtual meeting during the pandemic.
As public bodies meet virtually, questions regarding the validity of decisions rendered during these meetings will undoubtedly arise, especially in the land use and zoning context where decisions and approvals are often challenged or hotly contested. While virtual meetings—and the decisions made as a result of them—are permitted by EO 2020-75, there are additional concerns and pitfalls within this arena that may lead to future legal challenges. Municipalities, developers, and other stakeholders should be cognizant of the risks associated with virtual meetings and prepare accordingly.
Challenges based on the governor’s authority to temporarily suspend the OMA with EO 2020-75
One potential avenue that may be used to contest a decision of a public body that meets virtually during the pandemic is a challenge based on the governor’s authority to issue executive orders like EO 2020-75. The governor’s emergency management powers and authority to declare executive orders derive from the Michigan Constitution, the Emergency Powers of Governor Act, and the Emergency Management Act. While the governor has broad powers during a state of emergency or disaster, several lawsuits currently pending challenge the governor’s authority and the various executive orders she has issued during the pandemic. Likely the most relevant of these cases is the joint lawsuit brought by the Michigan House of Representatives and Senate challenging the governor’s issuance of executive orders on April 30, 2020—Executive Order 2020-67 and Executive Order 2020-68—that essentially extended the states of emergency and disaster in Michigan and on which many additional orders, including EO 2020-75, once rested. In its recently issued opinion and order, the Michigan Court of Claims held that while the governor’s re-declaration of the same state of emergency in EO 2020-68 exceeded the authority of the governor under the Emergency Management Act, EO 2020-67 was a valid exercise of authority under the Emergency Powers of the Governor Act. The court concluded that EO 2020-67 and any orders relying thereon remain valid and denied the declaratory judgment requested by the legislature. The decision is likely to be appealed, however, and it is possible that similar arguments could be used to challenge approvals and denials made at virtual meetings under EO 2020-75.
Challenges based on noncompliance with the requirements of EO 2020-75 or the requirements of the OMA not impacted by the order
Another basis that may be used to challenge land-use approvals or denials or zoning decisions rendered as a result of virtual meetings conducted during the COVID-19 pandemic is noncompliance with the requirements outlined in EO 2020-75, which public bodies must follow if choosing to hold a virtual meeting. Even though the order temporarily suspends strict compliance with certain provisions of the OMA, it includes specific requirements that public bodies must abide by if conducting a virtual meeting that would otherwise be held in a physical place and attended physically by members of the public body and the general public.
Remote meetings of public bodies held during the pandemic that do not comply with the requirements of EO 2020-75—two-way communication must be used, notice that the meeting will be held electronically and what needs to be specifically included in the notice, and the ability for members of the general public to comment as they would if the meeting were held in a physical place—could face challenges on the basis that the decision was in violation of the order, and therefore, in violation of the OMA. This is especially true given that EO 2020-75 does not affect a person’s ability to begin a civil action challenging the validity of the decision of the public body under the OMA. Further, participation in virtual meetings during the COVID-19 pandemic has exposed the technological challenges (e.g., poor or intermittent internet quality, buffering, and connection issues) as well as possible security flaws in some of the virtual platforms being used.
Additionally, as EO 2020-75 only suspends strict compliance with the OMA to the extent that a meeting is required to be held in a physical place or require that members be physically present, noncompliance with the OMA’s other requirements that are not affected by the order could create possible avenues for challenge to decisions made in these virtual meetings during the pandemic. Examples of this would include impermissible uses of “closed sessions,” private “chat” communications, or noncompliance with requirements to maintain and make available meeting minutes as outlined in the OMA. It is important to note, however, that a challenge based on nonconformity with the OMA—to the extent that it would invalidate a decision—could be rectified if a body reenacts the disputed decision so it later conforms with the OMA’s requirements.
Challenges based on due process or equal protection concerns that could arise due to public bodies meeting electronically
While EO 2020-75 permits public bodies to meet virtually during the COVID-19 pandemic, the technical requirements necessary for conducting these types of meetings may pose due process concerns. Challenges to decisions rendered during public meetings held virtually may be based on whether applicable minimum due process requirements were met. Because meetings of public bodies require notice and are usually held in a physical place open to the public, successful procedural due process claims are not very common. But this may no longer be the case when considering a virtual meeting during the pandemic. Situations could arise where an individual whose property interest is affected by an entitlement or zoning request is unable to attend a virtual meeting because he or she lacks the technology required to participate remotely (e.g., access to a computer or the internet) but would have been able to attend had the meeting taken place in a physical location.
Similarly, equal protection claims could also be raised as a result of virtual meetings of public bodies during the pandemic if the virtual format results in similarly situated individuals or groups being treated differently (e.g., if the municipality chooses a technology for remote participation that certain individuals or groups have limited or no access to). Moreover, as noted earlier, technological problems such as buffering, intermittent connections, the inability to hear, or other sound issues could impede meeting compliance. Proving the elements of an equal protection claim would likely be difficult in this context, however, where a pandemic seemingly provides a compelling rationale for remote meetings and the state has a legitimate interest allowing government to function while reducing the spread of the coronavirus.
Virtual meeting guidance for municipalities, developers, and other stakeholders
As the state of Michigan emerges from the COVID-19 pandemic and enters Phases 4 and 5, it is likely that use of the technology employed during the pandemic will continue in some fashion. In fact, the Michigan legislature is currently reviewing proposed legislation to amend the OMA to permit virtual meetings outside of the emergency orders. On April 24, 2020 HB 5714 was introduced in the House of Representatives that would amend the OMA to allow electronic or telephonic meetings of public bodies during a declared state of disaster or emergency under both the Emergency Powers of the Governor Act and the Emergency Management Act. The bill provides much of the same relief as EO 2020-75, and if enacted, would ultimately render the order and future similar orders unnecessary. The bill has been referred to the Committee on Government Operations and, as of the date this article was written, was in committee.
If public bodies choose to conduct remote meetings, it is fundamental that they meticulously adhere not only to the requirements of EO 2020-75, but also to the requirements of the OMA that are not impacted by the order. Noncompliance with EO 2020-75 or the OMA is likely to result in challenges regarding decisions rendered by the public body during virtual meetings. When possible, remote meetings held via videoconferencing should also include a call-in telephone number to allow individuals without access to computers or the internet to participate in the meeting; this may also aid in defending against procedural due process issues. Decisions regarding which virtual meeting platform to use are also vital in avoiding or attempting to avoid technical difficulties.
Developers and other stakeholders seeking entitlements or zoning approvals who are concerned about subsequent collateral attack should take a proactive approach, making every effort to ensure that the relevant municipality is complying with the requirements of EO 2020-75 and the OMA. This would include confirming that the public body is following all notice requirements and ensuring access for members of the general public to avoid future challenges regarding decisions rendered during these virtual meetings. Those with less pressing timelines (especially those who face organized community opposition) may want to consider postponing requests for entitlements or zoning approvals through remote meetings until after the pandemic to avoid some of the issues highlighted above as well as the technological challenges of making the most persuasive presentation using remote technology.
Municipalities, developers, and other stakeholders should be aware and understand the potential risks and challenges associated with decisions made during virtual remote meetings as they could lead to their invalidation or, at a minimum, cost additional time and money to defend.
Stephen R. Estey is a member in Dykema’s Real Estate Department. He routinely handles development and land-use matters to secure zoning entitlements. In this capacity, he assists his clients with regard to legal and strategic considerations in the planning process and represents their interest in zoning, property acquisition, and contract negotiations.
Lauren A. Evers is a senior attorney in Dykema’s Business Litigation group. Her practice involves all aspects of real estate disputes, including general real estate litigation, easement acquisition, subordinations, and condemnation of agricultural, residential, and commercial property. She also works with and advises municipalities, landowners, and businesses that are considering expanding or acquiring new locations in zoning and land-use matters.
Peter M. Grace is an associate in Dykema’s Business Litigation group. His practice involves commercial and business litigation, including land use and zoning disputes related to the leasing and management of commercial property, and breach-of-contract disputes.
Articles that appear on michbar.org do not necessarily reflect the official position of the State Bar of Michigan and their publication does not constitute an endorsement of views which may be expressed.
 Public bodies include “any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, that is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function.” MCL 15.262(a).
 EO 2020-15 and EO 2020-48 were the previous orders related to the OMA and provided substantially similar relief as EO 2020-75. These and other executive orders are available to read here. (accessed June 13, 2020)
 EO 2020-75 at ¶ 1(a).
 Constitution 1963, art V, § 1
 MCL 30.401 et seq. While there is much overlap between the emergency powers granted to the governor under MCL 10.31 et seq. and MCL 30.401 et seq., these statutes separately authorize the governor in times of emergency. Although MCL 30.401 et seq. was enacted in 1976, it does not replace or supersede the grant of emergency powers under MCL 10.31 et seq. See MCL 30.417(d).
 Two bills that sought to restrict these powers were introduced in the legislature: 2020 SB 857 and 2020 SB 858. 2020 SB 858 passed but was vetoed by the governor on May 4, 2020.
 At the time this article was written, the most recent state of emergency was declared in EO 2020-99. EO 2020-99 rescinded EO 2020-67 and EO 2020-68 and states that “[a]ll previous orders that rested on those orders now rest on this order.”
 Mich House of Representatives and Mich Senate v. Gov Gretchen Whitmer, unpublished opinion and order of the Court of Claims, entered May 21, 2020 (Docket No. 20-000079-MZ) at 10, 19.
 EO 2020-75 at ¶ 1(a–k).
 MCL 15.268 and MCL 15.269.