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### STATE OF MICHIGAN

COURT OF APPEALS

ELIZABETH MARKEL, ANN MARIE ROGERS, and ROGER SCHMIDT,

Plaintiffs-Appellants, UNPUBLISHED November 1, 2016

v No. 327617
Oakland Circuit Court DAVID MACKLEY, COLLEEN BARKHAM, ALICE TOMBOULIAN, a nd JOSEPH PERUZZI, LC No. 2014-139227-CZ

Defendants-Appellees.

Before: F ORT H OOD , P.J., and G LEICHER and O’B RIEN , JJ.

P ER C URIAM

.

Plaintiffs appeal as of right an order granting summary dispos ition in favor of defendants David Mackley, Colleen Barkham, Alice Tomboulian, and Joseph Pe ruzzi pursuant to MCR 2.116(C)(10). On appeal, plaintiffs argue that the trial court erred in granting summary disposition in this action alleging violations of the Open Meet ings Act (OMA), MCL 15.261 et

seq . We affirm in part and reverse in part and remand for further proceedings consistent with this opinion.

The issues presented in this case involve the activities of th e Oakland Township Parks and Recreation Commission (PRC). The PRC is made of seven elec ted officials, each elected to a four-year term. In November 2 012, plaintiffs Roger Schmidt a nd Ann Marie Rogers were newly elected as commissioners to the PRC. 1 They were joined by Andrew Zale, who was also elected for the first time in November 2012. Defendants, the r emaining four members of the PRC, were all long-time commissi oners. At the heart of this ma tter is a divide between defendants and the newer PRC members. Specifically at issue on appeal are emails sent between defendants regarding certain PRC matters that plaintiffs allege violated the OMA. Essentially, plaintiffs alleged that defendants used email communications to discuss and decide how to address PRC matters, and would then carry out those decisions a t the public PRC meetings as a
united front.

1 Plaintiff Elizabeth Markel is a resident of Oakland Township, and frequently attended public meetings of the PRC.-2- Plaintiffs argue that the trial court erred in granting summar y disposition pursuant to MCR 2.116(C)(10). We agree. Furth er, we conclude that plainti ffs were entitled to summary disposition.

“This Court reviews decisions on motions for summary dispositi on de novo to determine if the moving party was entitled to judgment as a matter of law .” Alcona Co v Wolverine Environmental Prod, Inc , 233 Mich App 238, 245; 590 NW2d 586 (1998) . A motion for summary disposition pursuant to MCR 2.116(C)(10) “tests the factual sufficiency of the complaint.” Joseph v Auto Club Ins Ass’n , 491 Mich 200, 206; 815 NW2d 412 (2012) . “In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and o ther evidence submitted by the parties, MCR 2.116(G)(5) , in the light most favorable to the party opposing the motion. ”
Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999) . To the extent this Court is asked to interpret the OMA, “[s]tatutory interpretation is an i ssue of law that is reviewed de

novo.” Cruz v State Farm Mut Auto Ins Co , 466 Mich 588, 594; 648 NW2d 591 (2002)

.

The purpose of the OMA was to “promote a new era in government al accountability.” Booth Newspapers, Inc v Univ of Mich Bd of Regents , 444 Mich 211, 222; 507 NW2d 422 (1993). “To further the OMA’s legislative purposes, the Court of Appeals has historically interpreted the statute broadly, while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists.” Id . at 223. “The Open Meetings Act allows individuals to bring ci vil actions for injunctive relief to either compel compliance or enjoin further noncompliance.” Davis v Detroit Fin Review Team , 296 Mich App 568, 576-577; 821 NW2d 896 (2012).

Pursuant to the OMA, “[a]ll meetings of a public body shall be open to the public and shall be held in a place availab le to the general public.” MCL 15.263(1). Further, “[a]ll deliberations of a public body c onstituting a quorum of its mem bers shall take place at a meeting open to the public except as provi ded in this section and secti ons 7 and 8.” MCL 15.263(3). 2 In other words, “[u]nder the OMA, public bodies must conduct their meetings, make all of their decisions, and conduct their delib erations (when a quorum is pr esent) at meetings open to the public.” Speicher v Columbia Twp Bd of Trustees , 497 Mich 125, 134-135; 860 NW2d 51 (2014).

The OMA defines a “meeting” as “the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a d ecision on a publi c policy[.]” MCL 15.262(b). In the present ca se, it is undisputed that the PRC is a “public body” pursuant to the definition provided by the OMA at MCL 15.262(a). Therefore , “[t]o constitute a ‘meeting’ of a ‘public body,’ as contemplated by the OMA, the following e lements must be present: (1) a quorum, (2) deliberation or rendering of a decision, (3) on a m atter of public policy.” Ryant v Cleveland Twp , 239 Mich App 430, 434; 608 NW2d 101 (2000). T he OMA defines a “decision”

2 It is undisputed that, in the present case, the mentioned exce ptions are inapplicable. See MCL 15.267; see also MCL 15.268; see also MCL 15.263(7)-(8).-3- as “a determination, action, vote, or disposition upon a motion , proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates p ublic policy.” MCL 15.262(d). The OMA does not, however, define what it meant when it referre d to the term “deliberating.”

See Ryant , 239 Mich App at 434. This Court in Ryant , therefore, consulted dictionary definitions and provided the following attempt to define “delib erating”:

The Legislature failed to define the term “deliberating” in th e context of the OMA. Black’s Law Dictionary (7th ed), defines this word as “the act of carefully considering issues and options before making a decision or taking some action; esp., the process by which a jury reaches a verdict; as by analyzing, discussing , and weighing the evidence” (emphasis added [in Ryant ]). The word
“discussion” is defined as the act of exchanging views on something; a debate

. Id. (emphasis added [in Ryant ]). Although Black’s Law Dictionary does not define “debate,” the Random House Webster’s Unabridged Dictionary ( 2d ed ) (1998), defines the word as “a discussion, as of a public question in a n assembly, involving opposing viewpoints.” [ Ryant , 239 Mich App at 434.]

When the Ryant Court considered the question of whether a deliberation or dec ision occurred in the context of the case, it asked whether there was an exchange of affirmative or opposing views, a debate on the presented issue , or a discussion regarding that issue. See id . at 435-436.

Before the trial court and on appeal, plaintiffs argue that th e emails exchanged between defendants amounted to a violation of the OMA, in that those em ails were a meeting where a four-member quorum deliberated and decided issues of public pol icy. Defendants, on the contrary, insist that no set of emails fulfilled the three requ irements of the OMA. The trial court
held that while defendants de liberated regarding issues of publ ic policy, no quorum w as present.

We first address the requirement that a “quorum is present.” It is undisputed that, as a seven-member public body, a quorum of the PRC consists of a min imum of four members. 3 The trial court held that there was not a quorum present in the ema ils. The trial court stated: “[T]his Court finds that plaintiffs acknowledged in their depositions that none of the emails constituted a ‘quorum’ since only three defendants were in any given email.” On appeal, defendants again assert this position, highlighting emails in the record where l ess than four commissioners were included. Defendants also point to deposition testimony where plaintiffs, questioned regarding whether individual emails constituted a meeting, admitted that certain emails did not contain a quorum, and, thus, were not meeti ngs. The trial court relied h eavily on this testimony. 4

3 Mindy Milos-Dale, the director o f the parks and recreation dep artment, was often included on the disputed emails. However, Milos-Dale was not an elected co mmissioner and th erefore would not count toward a four-member quorum.

4 We note that we are not convinced that a deponent’s opinion th at an email did or did not contain a quorum should be determinative here, particularly whe re documentary evidence was
available.-4- However, our review of the record reveals that while plaintiffs may have admitted that some of the emails only contained three commissioners, there were other emails that included four
commissioners. 5 Accordingly, we reject this reasoning.

Related to the requirements of a quorum as well as deliberatio n toward a decision is the argument advanced by defendants that where a quorum was include d in the emails but all four
commissioners did not necessari ly engage in the discussion, a m eeting did not occur. Ultimately, we disagree with defendants’ a rgument in that regard.

To begin, it is plain that, even where a quorum of individuals are present at a given nonpublic meeting, that does not necessarily mean that there is a violation of the OMA. Specifically, in Ryant , 239 Mich App at 435-436, this Court considered a case where a quorum of a township board attended a planning commission meeting. Th at quorum, howev er, was made up of members that were also members of the planning commission

. Id . at 431. In other words, there were individuals that were members of both the township b oard and the planning
commission. Id . While at that meeting, a township board member that was not a member of the planning commission addressed the planning commission. Id . at 432. “The trial court held that because [the township board member] addressed the planning comm ission in the presence of a quorum of the township board, the board was engaged in delibera tions toward rendering a decision regarding a matter of public policy without proper not ice and in violation of the OMA.”

Id . This Court considered the issue on appeal and reversed. Id . at 436. This Court reasoned that “[t]he record does not show that any of the other township boar d members present exchanged any affirmative or opposing view s, debated the proposed amendme nt, or engaged in any discussion regarding the statements made by the township superv isor.” Id . at 435-436. In other words, the members of the planning commission that were also me mbers of the township board were not engaged in an exchange of ideas regarding the issue pr esented by the township board
member. See id . This Court considered the other township board members as ob servers. Id . at 436. This Court reasoned that “[a]s long as the township board members did not engage in deliberations or render decisions, the subject meetings did not need to be noticed as meetings of the township board.” Id . Stated differently, so long as the members were in attendanc e but remained silent, there was not a deliberation under the OMA. Id

.

Defendants relied heavily on Ryant for the notion that all four quorum members had to participate in order to constitute deliberation by a quorum. H owever, we believe that defendants

5 For instance, the emails involving discussions of the Land Pre servation Act often contained four commissioners. Indeed, in their brief, defendants cite to several emails dated April 10, April 19, and May 10, 2013, that did not contain four commissio ners. However, there were also emails in the record dated Apr il 4, April 6, April 12, April 17 , April 19, April 21, and June 26, 2013, which did include four commissioners. Defendants also ci te to a May 21, 2013 email between Mackley and Peruzzi regarding the Marshview Connector P arking Lot. Defendants fail to reference that Mackley forwarded Peruzzi’s email to all defe ndants that same day, prompting additional responses. Emails dated June 27 and July 2, 2013, o n the same issue also contained
the four defendants.-5- attempt to overextend the Ryant decision to this circumstance. Ryant is distinguishable from the present case. In Ryant , the non-deliberating township board members were also members of the planning commission. The Court’s holding made clear that these dual members, who remained silent during the township board member’s presentation, were ac ting in the capacity of the planning board, as opposed to the township board. In this case , the PRC members included in the emails at issue here may have not responded to all of the e mails, but were not involved in a conflicting or dual role at the time. Thus, the circumstances between Ryant and the current case are distinct. Indeed, we are not convinced that the holding in Ryant should be as broadly construed as defendants suggest.

Additionally, defendants’ interpr etation runs contrary to the statutory language that only requires that a “quorum is present.” MCL 15.262(b). The langu age of the statute does not state that the quorum is required to deliberate, but rather that the quorum be convened for “the purpose of deliberating.” MCL 15.262(b). The “primary goal” o f statutory interpretation “is to discern the intent of the Legisl ature by first examining the pl ain language of the statute.” Driver

v Naini , 490 Mich 239, 246–247; 802 NW2d 311 (2011). A statutory prov ision must be read in the context of the entire act, and “every word or phrase of a s tatute should be accorded its plain and ordinary meaning.” Krohn v Home–Owners Ins Co , 490 Mich 145, 156; 802 NW2d 281 (2011). When the language is clear and unambiguous, “no furthe r judicial construction is required or permitted, and the statute must be enforced as writ ten.” In re Harper , 302 Mich App 349, 355; 839 NW2d 44 (2013) (citation and internal quotation m arks omitted). Based on these principles, if we were to read the statute in question as requi ring the entire quorum to actively engage in the discus sion, we would be read ing a requirement int o MCL 15.262(b) tha t it does not
contain.

We acknowledge that there must be some level of balance, becau se as defendants argue, it would improper to be able to have an OMA violation foisted u pon a quorum of individuals simply by including them all in an email. Therefore, pursuant to MCL 15.262(b) and Ryant , we agree there must be some level of discourse on the issue of pub lic policy that is being presented. However, that level of discourse need not require the participa tion of every quorum member to fulfill the requirements of the OMA. MCL 15.262(b). See also Ryant , 239 Mich App at 435- 436. Indeed, to impose such a requirement would allow public b odies to forego the requirements of the OMA by merely having certain members of the quorum read the emails but remain silent. This would run contrary to the purpose of the OMA, which is to increase governmental accountability. Booth Newspapers , 444 Mich at 222.

Ultimately, we conclude that whether “a quorum is present for the purpose of deliberating toward a decision,” when only some commissioners in the email c hain respond to a message is often a question of fact. With t hat said, here, we conclude th at the evidence clearly showed a violation of the OMA by defendants. Speaking in general terms, there was no evidence that the
commissioners on the email were mere observers like in Ryant . As discussed further below, even when a defendant did not affirmatively reply to an email, their tacit agreement was later demonstrated at the public meetings by acting consistently with decisions made in the emails. Further, none of the commission ers replied objecting to their i nclusion on the emails. Additionally, there were many emails, so responding to some ema ils, but not others, could indicate participation on behalf of a commissioner. This is es pecially true where there was evidence that defendants intended to subvert the OMA, as noted by the trial court, and at least-6- one commissioner was advised ag ainst sending emails that includ ed a quorum of the PRC actively deliberating. In additi on to these general observati ons regarding the emails, we also address each of the five “meetings” alleged by plaintiffs to de termine whether the emails presented to the trial c ourt violated MCL 15.262(b).

First, we consider the alleged meeting with regard to the Oakl and Township Board of Trustees’s (BOT) attempt to seize control of the Land Preservat ion Fund (LPF) from the PRC. Again, the first requirement for a meeting under the OMA is tha t there be a quorum present. Ryant , 239 Mich App at 434. A review of the emails on this topic re veals that the issue was initially raised by an e mail from Mindy Milos-Dale 6 to defendants Barkham, Tomboulian, and Peruzzi. In two separate emails on April 1, 2013, Mindy indica ted that they should prepare a response to BOT’s attempt to take over the LPF, and offered tha t the four defendants participate
in a conference call to determine their approach on the issue.

Later, the four defendants cons idered how to handle the legal opinion prepared by the attorney for the parks and recr eation department, Steve Joppich . Mackley emailed the three defendants and Mindy, noting that plaintiffs Rogers and Schmidt likely provided copies of Joppich’s legal opinion to Terry Gonser, the Oakland Township M anager. Mackley referred to Rogers and Schmidt as “spy’s.” Tomboulian offered that they sh ould produce Joppich’s legal opinion at the meeting and then ask that the PRC members returnit for shredding. Peruzzi responded to the same parties noting that Rogers and Schmidt wo uld not be likely to return the legal opinion, so they should be proactive and submit it to the BOT’s attorney and the BOT. Mackley responded the next day to the same parties, and include d a draft position statement. In that email, Mackley sought input on the draft position statemen t, based on the legal opinion provided by Joppich. Mackley also i nformed the other three def endants about how he would like to have the PRC meeting on the topic to play out. Mackley note d that the PRC would have to approve an official statement that was to be sent to the BOT, s o he stated that he would raise the issue before the PRC by reading parts of his position statement . After doing so, Mackley stated that one other defendant should move to adopt the position stat ement as the statement of the PRC, and then he would second it. Mackley even noted that the vote would likely end up 4-3 or

5-2.

When the meeting considering the issue actually arose, the Mee ting Minutes reflected
that the events related to the l egal and position statement occ urred just as suggested by Mackley. He began by reading parts of his position statement, another de fendant moved to adopt that statement, which was seconded by another defendant, and then th e final vote was 4-3 in favor of adoption. Notably, the 4-3 vote went directly along the lines expected, the four defendants voting in favor and the remaini ng PRC members voting against.

It is undisputed that the four d efendants received the aforeme ntioned emails. The emails reveal that Mackley, Peruzzi, a nd Tomboulian actively discussed the legal opinion and proposed

6 Recall that it is undisputed that Mindy is not a commissioner and therefore does not count toward the total for a quorum.-7- position statement, and the process that should be involved in adopting that statement. Barkham received those emails and then when the actual meeting took pla ce, the issue played out exactly as described. From this, it is plain that the four defendants were present in the email chain while public policy issues—specifically the PRC’s response to the BOT ’s attempt to seize control over the tax-funded LPF—were being deliberated upon. See Ryant , 239 Mich App at 435-436. They decided that there should be a legal opinion prepared by Joppic h. Upon reading that opinion Mackley drafted a position statem ent, and the four members were present in the email chain when Mackley discussed how that should be passed at the next me eting. Then when the meeting occurred, everything went according to plan. Because there was a quorum present and deliberation occurred regarding a matter of public policy, ther e was a meeting pursuant to MCL 15.262(b). Further, because that meeting was held privately vi a email, the four defendants violated MCL 15.263(3), which required such deliberations to be open to the public. For this reason alone, we reverse the tri al court’s decision and remand for the trial court to enter an order granting summary disposition in favor of plaintiffs, considerin g that plaintiffs seek only to have declaratory relief, an injuncti on on further violations of the OMA, and fees and costs. Because no damages are involved, the finding of one violation makes no difference opposed to five violations. However, we consid er the other alleged violations for thoroughness.

Next, plaintiffs allege that defendants had an email meeting i n violation of the OMA regarding the control of personne l. The question was whether J ames Creech, the Oakland Township Supervisor, was the manager of the PRC’s employees, or whether the PRC and Mindy controlled those employees. Once again, the four defendants we re recipients of the emails discussing this issue. Therefore, a quorum was present. MCL 1 5.262(b). There was not, however, a deliberation toward a decision. Rather, there was m erely a discussion among PRC members regarding who was in charge of the PRC employees. Inde ed, the discussion focused mostly on resolutions that the PRC had made in the past regardi ng Creech’s role as the Oakland Township Human Resources Manager and had little to do with futu re actions that revolved around public policy. MCL 15.262(b).

The specific discussion regarding a hiring of a stewardship ma nager, however, was
different. The record reveals th at there was no dispute that a majority vote of the PRC was required to hire a new PRC manager. However, prior to the meet ing at which the hire was to take place, Mindy and the four def endants explicitly discussed the hiring of Ryan Colliton for the position. Mindy began by presenting the idea in an email to th e four defendants. Tomboulian responded that they should offer the contract to Colliton, befo re the PRC meeting even took place, and to use parks funds if the LPF was not available. Ma ckley responded as well, noting that they should be prepared to offer the contract to Colliton, but to wait and see the outcome of a scheduled meeting with Gonser. When the issue was raised at th e PRC meeting, Mindy proposed that the PRC hire Colli ton. While there were some obj ections from Zale and Rogers, the motion to hire Colliton was made by one of the four defenda nts, seconded by another, and passed by all four (by a vote of 5-2, including Zale). Once ag ain, it is plain that all four defendants received the emails and therefore a quorum was prese nt pursuant to MCL 15.262(b). Next, it is also plain that Mackley and Tomboulian specifically engaged in deliberations regarding the hire of Colliton as the stewardship manager. Ind eed, both of those defendants
indicated that the contract shoul d be prepared (and even offere d) without considering that there still needed to be a resolution passed by the entire PRC. This reflects a consideration by-8- Mackley and Tomboulian that the other two defendants were on bo ard and present in the email conversation even though they did not actively participate. Th e outcome of the meeting showed that this understanding was corre ct, when the four defendants a ll voted together to hire Colliton. Clearly, this was a discussion and exchange of ideas on what pr ocess the PRC should take in hiring a stewardship manager, and more specifically, exactly wh ich candidate they should hire. MCL 15.262(b); Ryant , 239 Mich App at 235-236. As such, defendants were present as a quorum, while deliberating regard ing a matter of public policy (the hiring of a stewardship manager). MCL 15.262(b). Considering this, the meeting shouldhave been open to the public,
and the failure to do so was a violation of MCL 15.263(3).

Next, plaintiffs argue that defendants also held an email meet ing regarding the Marshview Connector Parking Lot (MVC). The issue was initially raised by Mackley, in an email to the entire PRC, wherein Mackley proposed adding the is sue to the next PRC meeting as requested by Gonser. Quite plainly, the agenda of a PRC meetin g would not be a matter of public policy. MCL 15.262(b). Peruzzi later responded to Mack ley alone, however, noting that he did not think the addition of the MVC issue to the agenda wa s timely, and that they should therefore hold off on considering it. Mackley then forwarded P eruzzi’s response to the other three defendants and asked for their response. In a later resp onse by Tomboulian to Mindy and the other three defendants, however, she noted that she had met with representatives of the Trails and Pathways Fund, and that they had indicated they would pay f or the MVC. She proposed that the PRC permit that funding and construction of the parking lot go ahead, even though it was to take place on parks land. At the subsequent meeting, the issue was raised by Tomboulian in the exact manner as discussed in her emails. She proposed that the Trails and Pathways Fund would pay for the MVC and that the PRC permit construction on its lan d. The matter passed unanimously. Once again, it is plain that the four defendants received the email in question, and that there was deliberation regarding whether to permit the MVC to be built on parks owned land with funding from the Trails and Pathways Fund. MCL 15.262(b). This bore out in the following meeting, when the discussion on the topic followed th e exact format of the discussion in the email by Tomboulian. As such, these emails between defe ndants amount to a meeting under the OMA, and therefore violated the OMA when it was not h eld publicly. MCL 15.263(3).

Finally, plaintiffs complain of discussions relating to proced ure guidelines at future PRC meetings. Here, summary disposition for defendants was proper. The emails at issue clearly reflect that Zale, Peruzzi, and Barkham were meeting as a subco mmittee of the PRC to recommend changes to meeting procedure guidelines to the actual PRC. Because they were meeting as a subcommittee (via email and in person), there was no violation of the OMA because the subcommittee was not a “public body.” MCL 15.262(a ). This Court has held that a “public body does not usually ini tiate or make a recommendation to itself.” Davis , 296 Mich App at 600. Rather, a public body might have subcommittees or committees that meet and then make recommendations to the public body as a whole. See id . When this occurs, there is no
violation of the OMA. Id . The facts plainly reveal that the subcommittee was not actin g as a public body but was simply preparing to make a recommendation t o the PRC as a whole. Indeed, that exact situation occurred at the subsequent meeting , when they presented the items discussed at the subcommittee meeting, permitted discussion and public comment on those issues, and then voted on them with the added changes. This cl early falls under the exception-9- provided in Davis , wherein the subcommittee was not a public body. Therefore, t here was no violation of the OMA, even though the meeting was held privatel y. MCL 15.263(3). Thus, summary disposition regarding to this issue was proper. 7

Affirmed in part, reversed in part, and remanded for further p roceedings consistent with this opinion.

/s/ Karen M. Fort Hood
/s/ Elizabeth L. Gleicher
/s/ Colleen A. O’Brien

7 We also take this opportunity to address the alternative argum ent relating to the existence of constructive quorums. The trial court declined to find a “cons tructive forum,” distinguishing case law relied on by plaintiffs w here this Court has held that intentionally forming sub-quorum groups for the purpose of deliberating and making actual decisi ons violated the OMA. See Booth Newspapers, 444 Mich at 222. The court distinguished the facts here becaus e there was no evidence that defendants were intending to form sub-quorums to subvert the OMA. Contrary to the court’s finding, there was evidence in the record that t he PRC’s legal counsel advised against emailing a quorum of commissioners. Thus, had we not a lready decided in favor of plaintiffs, we would have conclu ded that a question of fact exi sted regarding the existence of constructive quorums.