The Leelanau County Board of Commissioners appears to have violated the Open Meetings Act - again.

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It appears there may have been some serious
problems with how the Leelanau County Board
of Commissioners conducted that meeting with
respect to the Open Meetings Act.
—Robin Luce-Herrmann
Michigan Press Association attorney
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This time, part of the board’s rationale for going into closed session appears to be related to a case involving a suit against employees of the county Building Inspections department.

Following the closed session, the board authorized county administrator David W. Gill to attend a mediation session in the case.

The county itself is not being sued in the case. However, the county and Gill are being sued in another case involving the Building Inspections department and are facing an investigation from state officials into how the department has been managed. (See the story beginning on Page One of this edition.)

At its regular monthly meeting last week, the board voted 6-0 to go into “closed session,” supposedly to discuss three cases of “pending litigation” against the county.

In two of the cases, however, there is no active litigation. In the third case, there is litigation pending. But the county itself is not named as a party in the case.

The state Open Meetings Act allows a public body such as the county board to conduct a closed session “to consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.”

According to an attorney for the Michigan Press Association, Robin Luce-Herrmann, the “pending litigation” exemption of the Open Meetings Act applies only if a public body is actually consulting with an attorney who is present at the closed session.

There was no attorney present at the county board’s Aug. 21 closed session.

In addition, a public body’s discussion in closed session must involve actual litigation pending against the public body – not just “potential litigation” or litigation pending against other parties, according to Luce-Herrmann.

Pending litigation, she said, is defined as a court case that has been filed but for which no judgment has yet been rendered. Two of the three cases the county board cited in its reason for going into closed session last week have not been filed in any court.

One of the cases the county board supposedly discussed at the Aug. 21 closed session involves a long running lawsuit against two county building/mechanical inspectors. Although the county’s insurance carrier is helping to pay the inspectors’ legal fees, the county itself is not named as a party in the suit.

“It appears there may have been some serious problems with how the Leelanau County Board of Commissioners conducted that meeting with respect to the Open Meetings Act,” Luce-Herrmann said.

An attorney representing owners of The Homestead resort in the lawsuit against two county inspectors agreed.

Attorney Thomas Oehmke of Northport noted that neither Gill nor Leelanau County is named in his client’s suit against the inspectors, who are accused of “gross negligence” stemming from inspections they conducted of gas fireplace installations at The Homestead several years ago.

In a letter to an attorney representing the two inspectors, Oehmke noted that until last week, “County Commissioners were dismissive about the case, saying ‘It’s a matter for the insurance company.’”

Oehmke said that Gill may be called as a witness in the case against the two inspectors because he served as interim head of the Building Inspections department and as such was responsible for their direct supervision.

“In his position as the titular boss of (the two inspectors), Gill never disciplined (them) for their misbehavior in this fireplace Code inspection case,” Oehmke said.

“Therefore, I must object to Mr. Gill’s participation at mediation and … ask that Mr. Gill be excluded from our Sept. 4 facilitative mediation since he represents no party to this litigation,” Oehmke said.

There were two other cases of “potential litigation” cited by the county board last week. One case may involve the county’s landlord relationship with the operator of the Maple Valley Nursing Home. The other case may involve the county’s relationship with the owner of Great Lakes Telecom, an Ann Arbor firm which failed to win a contract to install wiring and provide phone service at the county Government Center now under construction in Suttons Bay Township.

The contract was won instead by the Traverse City firm Feyen-Zylstra. A lawsuit against Gill and the county filed last week by former Inspections Department head Robert VanDyke alleged that Gill fired VanDyke in part because of VanDyke’s insistence that Feyen-Zylstra not allow unlicensed apprentices to work on the Government Center project unsupervised.

Neither the operator of the Maple Valley Nursing Home nor the owner of Great Lakes Telecom has filed suit against the county – yet.

Asked to comment on the apparent Open Meetings Act violation, Gill would only say, “So, I stand corrected.”

County board chairman Robert Hawley declined to provide any on-the-record comment about the issue.

The county board is also believed to have violated the Open Meetings Act in June when it used “a letter subject to attorney-client privilege” as a pretext for discussing in closed session an audit that was critical of county financial reporting.