The Leelanau County Board of Commissioners has admitted that it violated state law when it ordered members of the public to leave a public meeting so the board could conduct a closed session that, for now, remains shrouded in secrecy.

During a special meeting on Friday, the county board voted 6-0 to publicly apologize for violating the state Open Meetings Act at an Aug. 21 meeting.

At last week’s special meeting, the board also denied violating the Open Meetings Act during closed sessions it held on Feb. 14, March 13 and May 11. The denial came despite an admission by county attorney Peter Cohl and the chairman of the county board, Robert Hawley, that the board conducted a “straw vote” and made a public policy decision during a closed session on March 13.

The Open Meetings Act strictly requires that public bodies conduct all votes and make decisions in sessions open to the public.

During public meetings held on Feb. 14 and May 11, the board cited a need to discuss a letter that was purportedly “subject to attorney-client privilege” as its reason for going into closed session.

According to information obtained by the Leelanau Enterprise through the Freedom of Information Act, a letter “subject to attorney-client privilege” was manufactured by Cohl or a member of his law firm at the request of county administrator David Gill specifically so the county board could go into closed session to discuss an audit report on county finances.

An audit report being prepared for the county at the time was critical of the apparent inability of treasurer Vicki Kilway to reconcile her books with those of clerk Michelle Crocker.

A Feb. 5 e-mail from Gill to an accountant conducting the audit stated that Gill intended to contact the county’s “corporate counsel” (Cohl and his law firm) “to see if he can give me a letter to go into closed session to discuss this.”

The letter was apparently obtained by Gill and used by the board as its reason for going into closed session on Feb. 14 and May 11. Board members said the attorney’s letter contained language that was to be inserted into the audit report.

When the audit report was formally adopted by the board on May 15, the board acted on what it had supposedly discussed during its closed sessions on Feb. 14 and May 11. The board voted to add a phrase to the audit report admitting that the county “continued to have problems (i.e., identifying the reasons for fluctuating variances) in completing bank reconciliations for its primary operating accounts…”

During most of the closed session on May 11, county treasurer Vicki Kilway was excluded from the meeting, but was later summoned to the meeting room by Hawley. Closed sessions are allowed if complaints are being brought against a public official – but only if the public official requests a closed session.

Kilway had made no such request.

Hawley later told a newspaper reporter that the county board may have “stubbed its toe” in going into closed session on May 11 .

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

At the March 13 meeting, the board also went into closed session “to discuss a letter subject to attorney-client privilege.” By all accounts, however, the board voted during that secret meeting to accept rather than challenge a police union arbitrator’s decision that Deputy Bruce Beeker should be reinstated to duty with the Leelanau County Sheriff’s Department.

At the Aug. 21 meeting, the board went into closed session to discuss three cases of “pending litigation.”

The Open Meetings Act allows public bodies to hold closed sessions to discuss pending litigation with an attorney who is either physically present at the meeting or on a speaker phone. No attorney was consulted during the meeting and, in two of the three cases cited by the board, there was no litigation pending.

At a special meeting the board held Friday to discuss Open Meetings Act issues with Cohl, county administrator Gill said he would take “full responsibility” for giving the board “bad advice” in recommending that the board go into closed session on Aug. 21. District No. 5 commissioner David “Chauncey” Shiflett was absent from last week’s special meeting.

Cohl, for his part, denied any wrongdoing. Cohl said he believes that “any legal opinion” offered to the county by its attorney in writing is “subject to attorney-client privilege” and can be used as justification for going into closed session. But, Cohl added, a county board is never “required” to go into closed session – and any decision it makes to do so is its own.

Cohl also told the county board that it could not legally release minutes of any of their closed sessions – even the one they admitted was held illegally – without a court order. Cohl did not offer to seek a court order, nor did he recommend that the board do so.

The special meeting on Friday was held in response to a letter sent by Leelanau Enterprise publisher Alan Campbell to Hawley on Aug. 30 asserting that the board had repeatedly violated the Open Meetings Act and requesting that minutes of improperly closed sessions be released to the public.

“We’re particularly concerned about what we see as an abuse of attorney-client privilege and the failure of the county to acknowledge more than one violation even though the facts clearly point to more,” Campbell said. “They are putting us in a position where we have to file a lawsuit to learn exactly what occurred in what should have been open meetings.”

Campbell said the discussion behind closed doors about a discrepancy in the county audit, and other issues taken up away from constituents, should be brought out in the open. “We’re still looking at ways to accomplish that,” he said. “One solution would have been for the county to offer to get a judge’s order to unseal the minutes, but apparently that was not on the table.”