After reviewing the findings of a Michigan State Police (MPS) investigation, the Leelanau County Prosecutor’s Office has decided not to prosecute the county’s Energy Futures Task Force for allegedly violating the Michigan Open Meetings Act (OMA).
Gary Hosking, a Northport resident, had previously filed a complaint with County Prosecutor Joe Hubbell alleging that the task force is not abiding by the OMA. The task force, which meets on the first Thursday of every month at the Leland Township Library, had not posted meeting notices and minutes between October and March.
Hubbell forwarded the complaint to the county sheriff’s office, who sent it onto the MSP, who has jurisdiction over these cases. Hosking’s complaint was investigated by Trooper Alex Bendickson of the MSP Traverse City post and delivered a report on his findings back to Hubbell June 5. Chief Assistant Prosecutor Tristan Chamberlain wrote a conclusion on Bendickson’s report.
“Criminal prosecution requires an ‘intentional’ violation,” Chamberlain wrote in his memo. “Based on the law and the information provided, criminal prosecution is not appropriate. There is insufficient evidence to show this was an intentional violation.”
Chamberlain’s view differs from that of county attorney Matt Nordfjord. Nordfjord argued in a May 13 email to the board of commissioners that, since they “did not empower or delegate to the EFT the BOC’s decision-making authority,” the task force is not subject to the OMA.
Citing the county board resolution to appoint the task force and a passage from Michigan Common Law, Chamberlain says that since “the only limitation on the EFT decision making is if county expenditures or facilities are utilized, these discussions fall under the umbrella of ‘decision’ making as contemplated by MCL 15.262(d), and are therefore governed by the OMA.”
Although Chamberlain believes the task force violated the OMA, he does not believe they should criminally prosecute them for it. He says that the crime of violating the OMA requires intent, citing the 1998 Michigan Court of Appeals case People v. Whitney.
“Based on the information received, it appears that the chair of the EFT did not intend the violation of the OMA. In the reports, the chair stated that this was the first time he had led a taskforce, the board of commissioners told the EFT they did not have the authority of a committee, and the chair believed that the EFT had no decision-making authority,” Chamberlain’s memo states.
Chamberlain said that alternate remedies for an OMA violation would be invalidating decisions based on the discussion of noncompliant meetings, or an injunctive relief could be used to compel compliance or to enjoin noncompliance with the OMA. He said that these remedies could be pursued by a community member.
Hosking told the newspaper that he believed the task force was attempting to hide their activities and push through their recommendations to the county board of commissioners without public transparency.
Task force Chair Joe DeFors denied Hosking’s allegations. DeFors also said that the group has been recording meeting minutes and attempting to make them available, but they weren’t posted on the county’s website due to miscommunication with other county departments.
