MICHAEL KITCHEN V FERNDALE CITY COUNCIL
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL KITCHEN, WILLIAM LEGAULT,
and LEE ANN O'CONNOR,
FOR PUBLICATION
September 20, 2002
9:10 a.m.
Plaintiffs-Appellees,
v
FERNDALE CITY COUNCIL, CHARLES
GOEDERT, JONATHAN WARSHAY,
GERALDINE KULICK, ROBERT J.
PACZKOWSKI, ROBERT G. PORTER,
DANIEL P. CHRIST, and HOWARD SHIFMAN,
No. 224374
Oakland Circuit Court
LC No. 99-014228-CZ
Defendants-Appellants.
MICHAEL KITCHEN, WILLIAM LEGAULT,
and LEE ANN O'CONNOR,
Plaintiffs-Appellants,
v
FERNDALE CITY COUNCIL, CHARLES
GOEDERT, JONATHAN WARSHAY,
GERALDINE KULICK, ROBERT J.
PACZKOWSKI, ROBERT G. PORTER,
DANIEL P. CHRIST, and HOWARD SHIFMAN,
Defendants-Appellees.
No. 226378
Oakland Circuit Court
LC No. 99-014228-CZ
Updated Copy
December 6, 2002
Before: Talbot, P.J., and Smolenski and Wilder, JJ.
WILDER, J.
In these consolidated appeals arising from claims under the Open Meetings Act (OMA),
MCL 15.261 et seq., defendants appeal as of right from the trial court's order granting partial
summary disposition for plaintiffs, and plaintiffs appeal by leave granted the trial court's order
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denying plaintiffs' request for attorney fees and costs. We affirm the order granting summary
disposition for plaintiffs, reverse the order denying attorney fees and costs, and remand.
I. Facts and Proceedings
This case involves a dispute between various appointed and elected officials of the city of
Ferndale. Plaintiff Michael Kitchen is the police chief. Plaintiff William Legault is the fire
chief. Plaintiff Lee Ann O'Connor is the city clerk. Defendant Charles Goedert is the mayor.
Defendants Jonathan Warshay, Robert J. Paczkowski, Robert G. Porter, and Geraldine Kulick
are councilpersons. Defendant Daniel P. Christ is the city attorney. Defendant Howard Shifman
is the city's labor attorney.
The dispute arose following a closed session of the Ferndale City Council, which was
held to conduct periodic personnel evaluations of city council appointees including all three
plaintiffs. Plaintiffs requested a closed hearing pursuant to MCL 15.268(a). During the
afternoon before the closed hearing, defendant Goedert told the city manager's secretary that he
would be taping the closed session and asked her to have equipment and tapes ready. That
evening, a regular open session of the city council was held. Karen Pedro, the deputy city clerk,
was present for the open meeting and was directed by defendant Goedert not to attend the closed
session. She returned when the open session reconvened. Defendant Goedert, who, according to
defendants, "taped the meeting for his own purposes, not as an official record," gave possession
and control of the tapes to defendant Christ.
Three days later, the Ferndale City Council conducted an open meeting in which
defendant Christ stated that he received the tapes of the closed session and was sending a copy to
defendant Shifman in order to obtain advice about any outstanding labor issues. Subsequently,
the Ferndale City Council moved to schedule the completion of personnel evaluations of
appointees including plaintiffs. Shortly thereafter, defendant Goedert filed with plaintiff
O'Connor a sealed set of what Goedert described as the minutes of the closed session meeting.
Plaintiffs filed a complaint alleging that defendants violated the OMA after defendant
Goedert took possession of four tapes of the closed session, did not give the tapes to the city
clerk or deputy clerk, and, instead, gave them to defendants Christ and Shifman. Plaintiffs asked
the trial court to order that the tapes be turned over to plaintiff O'Connor, to enjoin defendants
from further noncompliance with the OMA, to award plaintiffs costs and attorney fees, and to
assess exemplary damages of $500 against defendants Goedert and Christ for their intentional
violations of the OMA.
Defendants filed a motion for summary disposition, pursuant to MCR 2.116(C)(8) and
(C)(10), arguing that (1) defendants had complied with the requirements of the OMA that
provide that separate minutes of a closed session be retained by the city clerk, (2) the OMA does
not require that defendant Goedert's tapes of the closed session be preserved or maintained by the
city clerk, and (3) sending copies of the tapes to Ferndale's attorneys is not a disclosure of the
minutes to the public, but rather is a protected disclosure consistent with attorney-client
privileged communications and is permissible under the OMA.
Plaintiffs filed a response to defendants' motion for summary disposition and filed their
own motion for summary disposition pursuant to MCR 2.116(C)(9) and (10). Plaintiffs first
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argued that defendant Goedert violated the OMA by tape-recording a closed session of the
Ferndale City Council without formally being designated as secretary. The Ferndale Code
provides that the city clerk shall keep and sign the record of the council's proceedings. However,
plaintiff O'Connor could not record the minutes of her own personnel evaluation, and rather than
have the deputy clerk assume plaintiff O'Connor's duties, defendant Goedert tape-recorded the
session himself. Plaintiffs argued that this was a violation of the OMA provision requiring the
minutes of a closed session to be taken by the clerk or the designated secretary of the public
body.
Plaintiffs also argued that defendant Goedert violated the OMA provision that minutes be
retained by the clerk and not be made available to the public when he took the tapes home with
him rather than depositing them with the proper city official. In addition, plaintiffs argued that
defendants Goedert, Christ, and Shifman violated the OMA by publishing and disclosing the
minutes of a closed session of the Ferndale City Council, contrary to the OMA provision that
permits minutes of closed session meetings to be disclosed only if required by a trial court's
order in a civil action.
Defendants filed a response opposing plaintiffs' motion for summary disposition, arguing
that because the OMA requires that closed session minutes need only reflect the date, time,
place, attendance, and purpose of the meeting and does not specify a time limit or a procedure
for designating a secretary if the city clerk is not present, defendant Goedert's delivery of sealed
minutes of the session in question was in full compliance with the OMA.
Defendants further argued that they did not publish the minutes of a closed session in
violation of the OMA for three reasons: (1) the tapes were not minutes, (2) the city attorney and
labor counsel are not "the public," and (3) the OMA does not abrogate the attorney-client
privilege.
The trial court granted summary disposition in favor of defendants on plaintiffs' claim
that defendant Goedert violated the OMA by designating himself to take the minutes. The trial
court also granted summary disposition in favor of defendants on plaintiffs' claim that defendants
violated the OMA by publishing and disclosing the minutes of a closed session. The trial court
found that the council appropriately voted in an open session to send the tapes to defendant
Shifman, the city's labor attorney, who is obligated by the attorney-client privilege to maintain
the confidentiality of the information contained on the tapes. The trial court granted summary
disposition in favor of plaintiff s on their claim that defendant Goedert violated the OMA by
taping the closed session and taking the tapes home with him. The trial court held that the tapes
of the session were part of the minutes that must be deposited with the city clerk. Finally, the
trial court also denied plaintiffs' request for injunctive relief finding that the relief was
unnecessary because the council made a good-faith effort to comply with the OMA. The court
asked for supplemental briefs on the issue of costs and fees.
Plaintiffs filed a supplemental brief in support of their request for costs and attorney fees
pursuant to MCL 12.271(4), claiming that they were entitled to fees and costs because the trial
court granted summary disposition of part of plaintiffs' claim under the OMA. Plaintiffs asked
for $9,483.75 in attorney fees and $466.75 in costs. Defendants filed a brief in opposition to
plaintiffs' motion for costs and attorney fees, arguing that the court should deny plaintiffs' motion
for attorney fees because (1) the OMA does not specify a time frame for tapes to be submitted to
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the clerk to be retained along with the minutes, (2) there is no precedent for requiring public
bodies to retain tapes of meetings along with the minutes of a meeting, and (3) the OMA's policy
for retaining minutes and tapes was followed and, thus, there was substantial compliance in the
safekeeping and retention of the tapes.
Before the trial court ruled on the pending motion for costs and attorney fees, defendants
filed a motion for reconsideration of the trial court's ruling that the tapes of the closed session
constituted minutes under the OMA. Defendants argued that the trial court incorrectly relied on
and misquoted Titus v Shelby Charter Twp, 226 Mich App 611; 574 NW2d 391 (1997), which
held that a transcript of a closed session is part of the official record of the session and thus part
of the minutes of the session. Defendants also argued that the OMA does not impose a time limit
on providing minutes to the city clerk and that requiring tapes to be filed with the city clerk
would be an undue burden on public bodies that was not envisioned by the Legislature. The trial
court denied defendants' motion, stating that "it is undisputed that Mayor Goedert decided to take
the minutes. The fact that he chose to transcribe by way of recordation does not affect this
Courts [sic] result where, as here, that recordation was intended to serve as the minutes or
official record of the proceeding."
The trial court also denied plaintiffs' motion for costs and attorney fees, clarifying that
although it ordered that the tapes be filed with the city clerk, it did not find that defendants had
violated the OMA. The court pointed out that the OMA does not address audio recordings for
closed sessions, that case law on the issue "is likewise sparse," and that, accordingly, the award
of costs and fees was not warranted under MCL 15.271(4).
II. Standard of Review
We review de novo questions of statutory interpretation. In re MCI Telecommunications
Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999).
III. Violation of the Open Meetings Act
Defendants argue that the trial court erred in granting partial summary disposition to
plaintiffs. We disagree.
The relevant portions of the OMA provide:
(1) Each public body shall keep minutes of each meeting showing the
date, time, place, members present, members absent, any decisions made at a
meeting open to the public, and the purpose or purposes for which a closed
session is held. The minutes shall include all roll call votes taken at the meeting. .
..
(2) Minutes shall be public records open to public inspection and shall be
available at the address designated on posted public notices pursuant to section 4.
Copies of the minutes shall be available to the public at the reasonable estimated
cost for printing and copying. [MCL 15.269.]
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A separate set of minutes shall be taken by the clerk or the designated
secretary of the public body at the closed session. These minutes shall be retained
by the clerk of the public body, are not available to the public, and shall only be
disclosed if required by a civil action[.] [MCL 15.267(2).]
Our primary goal in interpreting a statute is to ascertain and give effect to the
Legislature's intent in drafting the statute. When the statutory language involved appears clear
and unambiguous on its face, we must presume that the Legislature intended the meaning it
plainly expressed; judicial construction is neither permitted nor required, and we must enforce
the statute as written. Pohutski v Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002); In re
MCI, supra at 411. "[C]ourts may not speculate about an unstated purpose where the
unambiguous text plainly reflects the intent of the Legislature." Pohutski, supra at 683. Courts
must accord the words of a statute their plain and ordinary meanings and should look beyond the
statutory language itself to ascertain legislative intent only when the statutory language appears
ambiguous. Id.; In re MCI, supra.
The question before us is whether an audiotape of a closed session meeting of a public
body is part of the minutes of the session meeting and thus is required to be filed with the clerk
of the public body for retention as specified by MCL 15.267(2). Applying principles of statutory
interpretation, we conclude that the audiotape at issue is part of the minutes of the closed session
and therefore must be filed with the clerk.
Defendants argue that because audiotapes are not specifically referenced in the OMA,
they cannot constitute part of the minutes within the meaning of the act. The fact that audiotapes
are not mentioned in the OMA is not dispositive. We note that the terms "minutes" and "public
record" are not defined in the OMA. As we found in Titus, supra at 615, "[t]he plain and
ordinary meaning of 'minutes' of a meeting refers to the official record of the proceedings at a
group's meeting. Random House Webster's College Dictionary (2d ed, 1995), p 837." "Public"
means "open to all persons." Random House Webster's College Dictionary (2d rev ed, 2001), p
1070. "Record" means "an account in writing or the like preserving the memory or knowledge
of facts or events," and "information or knowledge preserved in writing or the like." Id. at 1104.
(emphasis added) Because the plain meaning of the term "record" encompasses more than
simply writings, and because the extent of this broader meaning is not clear, we conclude that the
term "minutes" is ambiguous and that judicial construction of the term is required.
Where statutory language is ambiguous, our first duty is to discern the legislative intent
underlying the ambiguous words. Crowe v Detroit, 465 Mich 1, 13; 631 NW2d 293 (2001). We
ascertain the legislative intent of ambiguous statutory language through reasonable inference
from the words expressed in the statute. State Farm Fire & Casualty Co v Old Republic Ins Co,
466 Mich 142, 146; 644 NW2d 715 (2002). In addition, statutes having a common purpose
should be read to harmonize with each other in furtherance of that purpose. Manning v East
Tawas, 234 Mich App 244, 249; 593 NW2d 649 (1999).
The Freedom of Information Act (FOIA), MCL 15.231 et seq., mandates a policy of full
public disclosure of information regarding the formal acts of public officials and employees,
Booth v Univ of Michigan Bd of Regents, 444 Mich 211, 231; 507 NW2d 422 (1993). Similarly,
the purpose of the OMA is to promote governmental accountability by facilitating public access
to official decision making and to provide a means through which the general public may better
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understand issues and decisions of public concern. Id. Because it is clear and indisputable that
the OMA and the FOIA have a common purpose, manifesting this state's public policy favoring
public access to government information, id., MCL 15.231 et seq., MCL 15.261 et seq., we
therefore look first to the FOIA for guidance in interpreting the term "minutes."
MCL 15.232(e) of the FOIA provides that "'[p]ublic record' means a writing prepared . . .
in the performance of an official function, from the time it is created." MCL 15.232(h) provides
that "'[w]riting' means handwriting, typewriting, printing, photostating, photographing,
photocopying, and every other means of recording, and includes . . . sounds, or symbols, or
combinations thereof, and . . . magnetic or paper tapes, . . . or other means of recording or
retaining meaningful content." It is apparent that the audiotape at issue would be considered a
public record within the meaning of the FOIA. Because minutes are public records within the
meaning of the OMA, and because the term "public records" as used in the OMA should be
interpreted so as to be in harmony with the common purpose of the OMA and the FOIA, we
conclude, consistent with the legislative intent expressed in both the OMA and the FOIA, that
the audiotape at issue in this case is part of the minutes of the closed session meeting.
We disagree with defendants' assertion that our conclusion that audiotapes of meetings
are minutes places an undue storage burden on the clerk of the public body responsible for
maintaining the minutes. Defendants claim, without any support in the record, that the clerks of
most public bodies maintain audiotapes of public meetings only until written minutes are
prepared. To the extent defendants' claim in this regard is correct, nothing in our opinion would
interfere with such a practice because while MCL 15.269 of the OMA requires a public body to
keep minutes, it does not require that multiple sets of the minutes of public meetings be kept and
maintained for any specific length of time. Thus, once the written minutes of public meetings
are officially adopted by the public body, nothing in the OMA would require the public body to
continue to maintain the audiotapes of the public meetings.
With respect to minutes of closed session meetings, however, MCL 15.267 expressly
provides that any minutes generated be retained by the clerk for at least one year and one day
after approval of the minutes of the meeting at which the closed session was approved, after
which the minutes may be destroyed. We find nothing onerous in requiring that public bodies
retain the written and audio accounts of those rare occasions in which the public body meets in
closed session, as required by law.
Therefore, the trial court did not err in ordering defendants to file the audiotapes of the
closed session with the city clerk.
IV. Attorney Fees and Costs
Plaintiffs argue that the trial court erred in denying their motion for attorney fees and
costs. We agree. MCL 15.271(4) provides:
If a public body is not complying with this act, and a person commences a
civil action against the public body for injunctive relief to compel compliance or
to enjoin further noncompliance with the act and succeeds in obtaining relief in
the action, the person shall recover court costs and actual attorney fees for the
action.
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Costs and fees are mandatory under the OMA when the plaintiff obtains relief in an
action brought under the act. Id.; Manning, supra at 253-254. Here, plaintiffs claimed, inter
alia, that defendants violated the OMA by failing to file the audiotapes of the closed session with
the city clerk. While the trial court ordered defendants to file the tapes with the clerk, it found in
a subsequent written opinion that defendants had not violated the OMA. This ruling was
erroneous. The fact that the trial court granted plaintiffs the relief they sought necessarily
includes a finding of a violation of the OMA. Id. Further, the plain language of the statute
simply states that plaintiffs need only "succeed[] in obtaining relief in the action" in order to
recover court costs and attorney fees. MCL 15.271(4). Because plaintiffs clearly succeeded in
obtaining relief in the action, the trial court clearly erred in denying their request for attorney
fees and costs.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Michael J. Talbot
/s/ Michael R. Smolenski
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