Amicus Brief

Herald Company v City of Bay City

Case Year: 1999
Case Forum: Michigan Supreme Court
Keywords: Open Meetings Act (OMA), public body, committee, Freedom of Information Act (FOIA)
Amicus Counsel:

Don M Schmidt (P20005) | 444 West Michigan Avenue |
Kalamazoo, MI 49007-3751 | 616-381-7030


The Court of Appeals’ holding that Defendants-Appellants violated the Open Meetings Act (OMA) was based upon the Court’s legal conclusion that the Bay City City Commission
and the Bay City City Manager constituted one public body under the OMA. This conclusion is not only an inaccurate description of the relationship between the city commission and city manager, it is incorrect as a matter of law in Michigan.Because of this statutory mandate that the legislative or governing body be separate from the administrative officers, the city manager cannot be “clearly part of the local legislative
body” or a “governing body”. The Court of Appeals’ decision that an advisory committee or body which makes only a
recommendation to a public body is subject to the OMA is contrary to the intent of the legislature in adopting the OMA. This is clearly demonstrated by the legislative history of its adoption. To restore the statutorily mandated relationship between a city commission and a city manager, and to restore the intent of the legislature regarding advisory bodies not being subject to the OMA, the decision of the Court of Appeals must be reversed. The FOIA is clear. It does not require a public body to compile or make a report of “information” as requested by Plaintiff-Appellee. FOIA specifically excludes what Plaintiff-Appellee claims it was entitled to, a “report of
information.” While it is true the FOIA is to be interpreted broadly, it cannot be interpreted so broadly as to change an invalid request into a valid one, or to require a public body to do what the Act expressly says it need not do.


The Michigan Supreme Court held that an individual executive such as a city manager acting in an executive capacity is not a public body for purposes of the OMA, nor was the committee that the manager formed. The Court also found that, in this particular situation, the city commission had not delegated the city manager the responsibility to make a recommendation since that authority was given directly to the city manager by the charter. (The Court also held that disclosure of the
information requested about the final candidates would serve the policy underlying the FOIA.)

MSC requested LDF amicus brief? No

Bay City’s charter provided that the city commission shall appoint a fire chief upon the recommendation of the city manager. When the fire chief position became vacant, the city manager appointed a five-person committee to assist him in making his recommendation to the commission. The committee screened the candidates and narrowed the pool to nine. Two withdrew and the committee interviewed seven and recommended three for second interviews with the city manager. The city manager interviewed the three final candidates and made a recommendation of one to the commission.
That candidate was hired by the commission. None of the meetings and interviews of the manager’s committee were conducted as open meetings. The local newspaper sued, claiming that actions of the city manager and his committee were required to be conducted in public under the OMA.
(The paper also claimed that the city violated the FOIA for failing to release the identities and other information of the seven finalists.) The circuit court held for the city; the Court of Appeals reversed, finding that the city commission and the city
manager, acting together, constituted a public body for OMA purposes.

Case Number: 1997-06
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