Local units up in the air with open meeting rules

Questions linger about how to conduct future meetings based on Supreme Court ruling

LAKE COUNTY -- The Lake County Board of Commissioners are in discussions regarding how to conduct future meetings after the Supreme Court overturned Gov. Gretchen Whitmer's executive orders pertaining to the COVID-19 pandemic.

At its meeting Oct. 14, Lake County Administrator Tobi Lake told the BOC they would need to decide if they want to continue to meet virtually or go to in-person meetings.

"All the work we put into the policies dealing with COVID-19 pandemic that the governor's executive orders required have now been overturned by the Supreme Court," Lake said. "Going forward we will need to decide if we want to continue to meet virtually or in person. The MDHHS is still requiring that if you hold a gathering of up to 10 people, you have to have seating that can separate everyone."

The Michigan Department of Health and Human Services issued an emergency order following the Supreme Court ruling that requires masks be worn at any gatherings occurring at businesses, offices, schools, childcare facilities, sporting events and other non-residential events and applies to organized gatherings larger than 10 indoors and 100 outdoors, and set capacity limits on indoor gatherings.

"You can't have more than 20 people per 1,000 square feet of room," Lake said. "This room is 1,092 square feet so technically we could have 21 people. The commissioners, along with the clerk and the administrator makes nine people, and then you can have 12 members of the public."

There is currently a bill awaiting Gov. Whitmer's signature that would permit virtual public meetings as long as the local government declares a state of emergency.

"We either meet virtually under the new law or we meet in person and limit it to 21 people in the room," Lake said. "We can couple the in person with the virtual meeting if the law allows that. We can keep it so that members of the public can still call in, so we don't overcrowd the room. We don't want to turn people away."

Lake said he would not recommend the board members call in because you have to have a quorum -- that means at least four members -- present to take any action.

The BOC did not make a decision on the issue and will wait to hear what happens with the bill allowing virtual meetings to continue.

Because of the Supreme Court ruling overturning Whitmer's executive orders after the April 30 expiration of the State of Emergency, there was a question as to whether action taken at subsequent virtual meetings was in violation due to a lack of a quorum of BOC members physically present.

"The governor's emergency declaration powers expired on April 30," Lake said. "Legal advisors are saying you can still meet virtually, but if you don't have a quorum present, you should go back and ratify any previous actions taken."

In response the board passed a resolution approving the ratification and re-approval of board actions from the Aug. 12 meeting, during which there was less than a quorum physically present.

In light of the Supreme Court's "invalidation of the State of Emergency declaration issued after April 30," and the subsequent "risk that the executive orders allowing the board to meet virtually might be annulled," legal counsel has recommended that the county ratify and reapprove action taken where there was less than a quorum present, the resolution states.

The following board actions were ratified and reapproved:

• Approval of the agenda;

• Approval of the previous meeting minutes;

• Approval of the semi-monthly detailed analysis in the amount of $160,195.23;

• Approval of the cancellation of all subcommittee meetings until Sept. 30;

• Approval of the FY20-21 County Child Care Summary Budget;

• Approval of the board's acceptance of the resignation of Joe Brooks from the Construction Board of Appeals; and

• Approval of the appointments of James Norlund, Tony Gagliardo and Homer Grant to the Construction Board of Appeals.