Legislative Policy Committee Agenda 08-23-2023

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                                  WEDNESDAY, AUGUST 23, 2023
                                              5:30 P.M.
                                       MUSKEGON CITY HALL
                                       933 TERRACE STREET
                                       MUSKEGON Ml 49440
                                              ROOM 204

I.     Call to Order

II.    Approval of Minutes for February 27, 2023

Ill.   Old Business

IV.    New Business

       1)   Legislative Update - Pete Wills

       2)   MiKids Tobacco Free Alliance Presentation & Model Policy Resolution - Mayor Johnson

       3)   Priority Home Repair & Residential Facade Application & Policies-Vice Mayor German

       4)   Agenda Packet Timeline-Jonathan Seyferth/Ann Meisch

       5)   Commissioner Ethics Policy- Commissioner Emory

       6)   ADA-related accommodation for virtual meeting participation by a committee or board
            member - Mayor Johnson

V.     Adjourn
                                CITY OF MUSKEGON
                          LEGISLATIVE POLICY COMMITTEE
                               Monday, February 27, 2023
                                       5:30 pm

Present: Commissioners St. Clair, Johnson, Gorman, German, Ramsey (arrived 5:37 pm) and
Absent: Commissioner Hood.

Approval of Minutes
Commissioner Ramsey moved, Commissioner St. Clair seconded, to approve the
minutes of February 27, 2023.

                                                MOTION CARRIED.
Suspend the Rules
Vice Mayor German moved, Commissioner Ramsey seconded to suspend the rules.

Ayes: Gorman, Emory, St. Clair, Johnson, Hood, Ramsey, and German.
Nays: None.

                                                           MOTION CARRIED.

Presentation on Responsible Contracting - Robert Joerg, Director of Advocacy for
Laborers International Union of North America, Michigan Chapter
Mr. Joerg gave a presentation on responsible contracting for public improvement greater than
$50,000 in value.

Legislative Update - Pete Wills
Pete Wills reviewed several State policy issues including the tax relief package, EITC change,
Elliot-Larsen Civil Rights Act, Prevailing Wage, Right to Work reinstatement, and FY24
budget supplemental.

Short-Term Rental Regulations-Benjamin Reider, Parmenter Law Associate
Ben Rider of Parmenter Law explained a shmt-term rental is normally defined as a rental that
is used less than 30 consecutive days. Many jurisdictions have implemented a licensing
system to identify and control the number of short-term rentals.

Regulations can include a prohibition, minimal regulations, or more extensive regulations.
Mr. Rider gave a further explanation on each of those options.

Motion by Commissioner Emory, seconded by Commissioner St. Clair to adjourn the
meeting at 6:50 pm.

                                                                   MOTION CARRIED.

                                                    Ann Marie Meisch, MMC
                                                         City Clerk
                                          Visit 601 Terrace Street, Muskegon, Ml 49440
                                          Mai PO Box 786, Muskegon, Ml 49443-0786


August 21, 2023

Jonathan Seyferth
City Manager
City of Muskegon
933 Terrace Street
Muskegon Ml, 49440

Re:   Virtual Meeting of Board Members: Open Meetings Act/American with
      Disabilities Act

Dear Mr. Seyferth:

You have requested our legal opinion and advice concerning the interplay of the
Michigan Open Meetings Act and the federal Americans with Disabilities Act as it relates
to board members attending and participating in public meetings. Not implicated in this
letter is the participation by the general public.

Open Meetings Act ("OMA")

The spirit of the OMA is to ensure that the public be allowed to attend meetings on
matters which affect them . The OMA was codified in 1976 and has largely been left
unchanged until recent years.

The changes to the OMA relating to virtual meetings was:

      1)     From 1976 to March 2019, the OMA did not contemplate virtual meetings;
      2)     In March of 2019, the OMA was amended to require a public body to
             establish procedures "to accommodate the absence of any member of the
             public body due to military duty", including participating and voting on the
             business of the public body. MCL 15.63(2);
      3)     Between March 2020 and December 31, 2020, various executive orders
             and OMA legislation permitted electronic meetings for any reason;
      4)     Between March 2021 and December 31 , 2021 a public body was allowed
             to meet virtually if there was a state of emergency declared by a
             municipality or county commission. If no state of emergency was declared,
             then a member may participate electronically if that member is absent due
             to military duty or that member is absent due to a medical condition; and
      5)     After January 1, 2022, all special exceptions expired, and the act reverted
             to its 2019 rule that a member may only attend a meeting virtually if the
             absence was due to military duty.
Americans with Disability Act (ADA)

The ADA aims to protect individuals with disabilities from discrimination in various areas
of life. The ADA requires reasonable accommodations to be made to ensure equal
opportunities for persons with disabilities. The ADA defines disability as a physical or
mental impairment that substantially limits one or more major life activities. Major life
activities include tasks such as walking, seeing, hearing , speaking , breathing , learning ,
and performing .

Title II of the ADA is most pertinent to your inquiry. Title II of the ADA, provides that "no
qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a
public entity." Mary Jo C. v. N.Y. State & Local Ret. Sys. , 707 F.3d 144, 153 (2d Cir.
2013). To prove a Title II claim , the plaintiff must

           (1) be a qualified individual with a disability;
           (2) be excluded from participation in a public entity's services, programs or
           activities; and
           (3) the exclusion was due to her disability.

A qualified individual is someone with "a disability who, with or without reasonable
modifications to rules, policies, or practices . .. meets the essential eligibility
requ irements for the receipt of services or the participation in programs or activities
provided by the public entity."

When a rule , policy, or procedure aids discrimination, the public entity is required to
make reasonable modification. However, if the public entity can show that making the
modification would fundamentally alter the nature of the service, program or activity,
then the body does not need to implement the changes. This determination is fact
specific and considers factors including the effectiveness of the implementation and the
cost it would take to implement.

Reconciling the OMA with the ADA

We are unable to find any US Supreme Court opinion or Sixth Circuit Court of Appeals
opinion which reconciles the OMA obligation for board or commission members to
participate in person with the ADA's requirement that entities accommodate disabled
individuals. 1

The Michigan Attorney General has issued an opinion 2 addressing the interplay
between the OMA and ADA. Attorney General Opinions are binding upon state
agencies and department, but are not binding upon municipalities , i.e ., cities , villages ,
townships, counties, etc.

1The issue was raise d in Elea nor Can ter v City of Muskegon. The United Stat es District Court for the Western
District of Michigan dism issed th e case without address ing that issue. Th e cas e is on appeal to the Sixth
Circuit, but this iss ue is not before the Sixth Circuit.

2   Michiga n Attorney General Op inion No. 73 18, issu ed on February 4, 2022 .
The Attorney General's Opinion notes that there is no statutory accommodation for
disabled individuals in the OMA. The OMA provides that only individuals who cannot be
present for a meeting due to military service may participate virtually. The Attorney
General claims that persons who are immunocompromised fall within the definition of a
qualified individual for protection under the ADA. The Attorney General opines that by
not providing reasonable accommodations in the OMA for those who are
immunocompromised, a municipality would be in violation of the ADA.

The Attorney General opines that the OMA is preempted by the ADA. Under the
doctrine of preemption, the federal laws will take effect over state laws that are in
conflict. The preemption can either be "express conflict" or "implied conflict". An
"express preemption" occurs when the federal statute clearly articulates that it preempts
any other statute, rule or provision . Implied preemption occurs when either Congress
has manifested an intent to occupy a field, or where a state law conflicts with a federal
law. In this case, the AG argues that the OMA is subject to implied preemption due to a
conflict of laws. The conflict, according to the Attorney General's Opinion, is that the
OMA fails to provide any accommodations for individuals with disabilities which Title II
ADA requires, thus the ADA preempts the OMA.

There are multiple problems with this argument. First, it is unclear whether there is an
actual conflict between the ADA and the OMA. Simply because federal law permits or
prohibits something, and state law does the opposite, does not mean that federal law
preempts state law. For instance, federal law prohibits the possession of marihuana and
yet under state law marihuana establishments exist throughout the State.

Second, the Attorney General's Opinion provides no authority for the proposition that a
reasonable accommodation can be the violation of state law. To the contrary, for
instance, the Courts have held that in employment cases a "reasonable
accommodation" cannot require violations of labor contracts.

Third, the ADA requires that only "reasonable modifications" be made for persons with
disabilities. However, reasonable modifications are not always necessary. The issue for
determination is whether the allowance of a board member to participate virtually
fundamentally alters the nature of the activity. The determination of whether an
alteration is reasonable is a fact specific inquiry that considers the effectiveness and
cost of the alteration. 3 Having some board members present at the meeting and some
members meeting virtually may alter the nature of the activity. If, in fact, it does not alter
the nature of the activity, then one or more disabled individuals can participate virtually.


If the City Commission, or other boards, decide to allow one or more members to
participate virtually because of their disability, there should be a process for:

           1) determining whether a board member has a disability as defined by the ADA,
              i.e., (a) a physical or mental impairment that substantially limits one or more

3   Given the allowance of the public to participate virtually, cost is, probably, not an issue.
          major life activities of an individual, (b) a record of such impairment, or (c)
          being regarded as having such impairment,
       2) determining whether the board member is excluded from participation due to
          the disability, and
       3) that a reasonable accommodation is to permit attending a meeting virtually.
Given the lack of specific statutory authority or case law, I would encourage a
requirement that a majority of the members be physically present at the meeting.
Minutes should reflect who is physically present and who is meeting virtually. If there is
not a quorum physically present, then any action taken should be re-enacted at the next
meeting where a quorum is physically present. Likewise, there is risk relating to motions
adopted or rejected based upon the counting of all votes as opposed to the votes of
members physically present.

Although no change must be made now, any change in procedure should contemplate
various situations. Further review may be necessary if there is any statutory change or
case law.

If you have any questions or concerns, please do not hesitate to contact our office

     truly yours,

John C. Schrier

         Direct P: (231) 722-5401
         Direct F: (231) 722-5501
         Email: [email protected]

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