The Leelanau County Board of Commissioners expects to receive an opinion from its attorney sometime this week on whether the board violated the state Open Meetings Act when it excluded members of the public from meetings it held earlier this year.

The opinion was sought in response to an Aug. 30 letter from Leelanau Enterprise publisher Alan Campbell asserting that several board meetings have been improperly closed to the public.

“The reasons provided by the county board for moving into closed sessions … live up to neither the letter nor the spirit of the state Open Meetings Act,” Campbell wrote in a letter to county board chairman Robert W. Hawley.

County administrator David W. Gill responded to Campbell’s letter on Sept. 4.

“We are investigating your request and are having our corporate counsel review the information,” Gill wrote.  “We consider this to be a most serious matter and are actively reviewing the actions taken on the specified dates.”

Gill concluded:  “In the event that we did violate the Open Meetings Act, we will take appropriate action to rectify the situation including apologizing for any unintentional violation.”

A discussion of the Open Meetings Act was not originally on the agenda of the county board’s regular monthly executive committee meeting on Tuesday morning.  However, a motion by District No. 3 commissioner Will Bunek to amend the agenda to include the topic carried in a 7-0 vote.

“No one intended to violate the law, but I just think we should redo those meetings,” Bunek said.

“Just because the newspaper says we violated the law doesn’t mean we need to redo the meetings,” countered Gill.  He urged commissioners to wait until they had received and reviewed the attorney’s opinion before they decided what to do.

Bunek said he believed commissioners were at fault for voting to go into closed session – and that their doing so was not Gill’s fault.

“But I advised you to go into closed session,” Gill said, “and I do take responsibility.”

District No. 1 commissioner Jean Watkoski said she believes the board needs to be “more diligent” in considering when it should go into closed session, “and when in doubt, we should keep it open,” she added.

During meetings it held on Feb. 14, March 13, and May 11, the board cited a need to discuss letters “subject to attorney-client privilege” as a rationale for going into closed session.

“In attorney-client privilege, the privilege is held by the client, not the attorney,” said District No. 5 commissioner David “Chauncey” Shiflett.  He said a letter from an attorney does not compel a public body to go into closed session. Rather, it is up to the board to decide whether to go into closed session, he said.

“We have an obligation to be transparent,” Shiflett said.

County board and District No. 6 commissioner Robert Hawley acknowledged that the county board may have “stubbed its toe” when it decided to go into closed session during a May 11 meeting.

“That was a meeting where we talked about personnel issues,” Hawley said.  “If somebody’s going to be embarrassed, then so be it.”

At its closed session on May 11, the board is believed to have discussed an audit report critical of how the county clerk’s office  and treasurer’s office had failed to balance financial transactions each office keeps separately.

Closed sessions are allowed to discuss certain personnel  issues such as disciplinary actions, but only at the request of the person who is the subject of the discussion.  No such request was made at the May 11 meeting.

During a Feb. 14 meeting, the board went into closed session “to discuss contract negotiations” with the police officer’s union “and an attorney/client privilege letter.”

It is believed that the board discussed a recommendation from its auditing firm during the closed session on Feb. 14.

The board also used the same “attorney-client privilege” rationale to go into closed session during a March 13 meeting. During the closed session, the board apparently decided to accept a union arbitrator’s ruling to reinstate a deputy who had been fired from he sheriff’s department.

Under the Open Meetings Act, such decisions must be made in open session.

During an Aug. 21 meeting, the county board voted to go into closed session to discuss three cases of “pending litigation.”  In one of the cases, the county had not been named as a party in the litigation.  In the two other cases, there was no litigation pending although there was a potential for litigation.

Under the Open Meetings Act,  closed sessions may be held to discuss pending litigation with an attorney; but there was no attorney present at the Aug. 21 meeting.