City Attorney Says IP&RC Rules Violate Open Meetings Act

IRONWOOD, MI - Wednesday, January 12, 2011 -  In an effort to protect citizens' rights and eliminate attempts by individuals to cyber-bully City officials, board members, and citizens attending meetings, Ironwood Parks & Recreation Committee (IP&RC) member Steve Frank, at their December meeting, proposed a set of rules that were designed to significantly reduce abuses by bloggers and media alike.

The IP&RC unanimously approved the rules and at the last City Commission meeting, Frank urged the Commission to adopt the same or similar rules.

The four basic rules drafted by Frank and approved by the IP&RC were:

1. Audio and video recordings may only be taken via fixed, free-standing stationary mics and cameras.
2. No photos may be taken during the meeting except by officially-designated media.
3. No photos of the audience may be taken except by officially-designated media.
4. No photos, audio or video content may be posted to a third-party website such as YouTube.

Frank's suggestion to adopt similar rules for the City Commission was not eagerly embraced by City Attorney Dennis Cossi. At the last Commission meeting Cossi told the Commission that he would research the matter, but he believed the rules were a violation of the Open Meetings Act.

At Monday night's City Commission meeting Lou Bonagura, Steve Frank, and Dennis Cossi addressed the Commission with regards to the proposed rules.

Lou Bonagura, creator and publisher of the IronwoodInfo blog-site, was the first to speak.

"My name is Lou Bonagura and I'm here to address the item on the Parks & Rules [sic] Committee. At its December meeting the Parks & Rec Committee passed illegal rules pertaining to photographing and reporting of the proceedings of that infamous committee. At the last meeting of the (City) Commission the Mayor stated that he wanted to adopt the very same illegal rules."

"Regardless of Mr. Frank's guarantees, the rules are found to be illegal. Certainly no surprise! The Michigan Attorney General has stated that..."

'The right to attend a meeting includes the right to tape-record, videotape, broadcast live on radio, and telecast live on television the proceedings of a public body at a public meeting. A board may establish reasonable regulations governing the televising or filming by electronic media of a hearing open to the public in order to minimize any disruption to the hearing, but it may not  prohibit such coverage. And the exercise of the right to tape-record, videotape, and broadcast public meetings may not be dependent upon the prior approval of the public body.'

"He also stated that..."

'No one may be excluded from a meeting otherwise open to the public except for a breach of the peace actually committed at the meeting.'

"I suggest that while photographing these meetings is not disruptive to the meetings, Mr. Frank's outbursts are a disruption to the meetings and that he should be removed from the meetings when doing so."

"As a side-note, I want you to know that the Michigan Open Meetings Act provides for a $500 fine to individuals violating the Act. They are not protected from individual action. Also, Michigan law prohibits illegal action being covered under insurance coverage. The City of Ironwood already has a poor track record with respect to actions inconsistent with the Constitutional guarantees. I suggest that you not add to your infamous behavior. Thank-you."

Steve Frank was the second to address the Commission on the matter.

Prior to speaking, Frank handed the Commissioners copies of articles he pulled from Lou Bonagura's website that demonstrate the libelous comments, inaccurate reporting, and slanted writing style featured on Bonagura's website.

"You know, several of you have said that you don't look at certain sites... you prefer not to know. Well, you know, we try to teach our children you have to stand up to a bully. Ignoring bullies never, ever worked. I even had people who I would consider friends of mine say they are amused by the site and they're amused by the style of writing.  And I would summit that they are just as guilty as someone who would stand around and watch a child be bullied without intervening."

Referring to the articles, Frank said, "Those were taken directly off of the website... word-for-word, nothings been edited. I was going to start highlighting certain  of the comments but I should have just printed it on yellow paper. It would have been easier and quicker."

"For the record, I'll give you a little bit of history." Frank said, "The City of Ironwood and the State of Michigan invested $30,000 in our community through the BluePrint Program, for that grant.  These two individuals refused to leave a meeting that was closed to the public that was between HyattPalma and certain City staff and people at the DIDA. It would have given us an opportunity to ask them questions and get the initial report. They refused to leave the meeting. What HyattPalma did,  they said... 'Well, those are our rules!' And they walked out. So that cost the City an opportunity to get one-on-one time with those representatives."

EDITOR'S NOTE: HyattPalma is the consulting firm that created the Ironwood Downtown BluePrint Plan. Mr. Frank is a former member of the DIDA (Downtown Ironwood Development Authority). A private meeting was scheduled so that the consultants could present their final findings to the City.

"For the record, Bob," Frank said, referring to Mayor Burchell, "I don't know if you're aware, but your son's photo has been online. The Mercer School system although it is in Wisconsin, they are quite clear that they need parental consent before any pictures are submitted online and if they accidentally send one on they are very quick to send an email saying. 'Please take it down.' And I don't know what Michigan law says."

EDITOR'S NOTE: Mr. Frank is a former contributor to the Chronicle, and he is aware of the Mercer policies that exist. Mercer Schools routinely submit articles to the Chronicle for publication.

"You want to talk about Open Meetings violations and things because our City attorney seems to be very concerned about that. At a DIDA meeting, when Mr. Albert's rights were violated absolutely nothing was done. Nothing was done by other members of the DIDA. Nothing was done by the City attorney and nothing was done by the City Commission at the time."

EDITOR'S NOTE: At the July 2, 2009 DIDA meeting, this reporter asked to speak on the proposed demolition of the Sharon's Place building. Former Chairman Goerig asked if I would like to address the Authority "before or after" the Authority reached the Agenda Item. I told Mr. Goerig I would like to address the issue when it came up on the Agenda. The item came up. The matter was discussed by the Authority, and Mr. Goerig called for a vote. I reminded Mr. Goerig that I had not yet addressed the Authority on the matter. He informed me that I could address the Authority after the vote. Mr. Frank pointed out that Mr. Goerig's actions were a violation of the Open Meetings Act. Goerig told Frank, that he was running the meeting and that I would have an opportunity to speak after the vote. Frank left the meeting stating that he would not participate in violating a citizen's rights. He later resigned from the DIDA.

"Initially, we used to plug in the recorder to the City's microphone system and then that privilege was taken away from us." Frank told the Commission. At that time, Mr. Frank was a photographer for the Chronicle. "In response, we had a 15 year-old volunteer who used to pass the microphone around so that Mr. Albert, who is hearing-impaired could actually hear what was being said. And at the time, our City attorney told that 15 year-old volunteer, 'Get that microphone out of my face! I don't want it!' And yet nothing was done about that. Is that a violation of the Open Meetings Act? Is that a violation of the Americans with Disabilities Act? I don't know."

"I just want to clear up one thing which is on page three of what I handed out. There was coverage online of the last Parks & Rec meeting and in it -- first of all, I'm not sure how there was coverage of it since they were not there, although Kim Kolesar was... I don't know if that's anything pertinent or not -- it said that I doubted that it was Cossi's opinion. I don't doubt that it is Mr. Cossi's opinion. What I had said was that I doubted that it was really a legal opinion, and certainly not something that we should be paying for. Simply cutting and pasting what the law says -- and any of you, anybody could have gone online  and Googled or looked up Michigan law -- highlighting a little part and basically saying 'No!' does not constitute a legal opinion."

"Just a quick perusal of this law, here are questions that would come to my mind. It says nothing about digital recording. It says 'tape-record, videotape, broadcast live on radio, and telecast live on television.' Well, as we all know, through the Digital Millennium Copyright Act, when we have digital recordings and digital reproduction we have totally changed the game and new laws were passed. It appears, through a quick reading of this, Michigan again has not done so. It says nothing about putting online. I talks about radio and television. It certainly says nothing about putting it on a third-party for-profit website."

"I also would question... is the Parks & Rec Committee even required to follow the Open Meetings Act? Is the Snowmobile Committee? Is the Blight Committee?  And before you say, 'Well, isn't it obvious!' from the Citizens' Media Law Project, 'The unifying requirement is that the public body must exercise governmental authority or perform a governmental function. For this reason it is not clear whether advisory committees that  do not take final action on public business are covered by the Open Meetings Act.' And as I learned at the last Parks & Rec meeting, we have no authority. We simply recommend things... pass the buck up on to you to make a decision."

"What this really comes down to... this is, in no way, an attempt to hide things, to be secretive or anything. This sprang from a desire to protect other peoples' right to come and express themselves at a public meeting. Notice how few applications we get for any committee positions, and I'm not saying that issues like this are the total cause of that lack of interest. But it certainly cannot help."

"And finally, when you ask, 'What can we do?' You can't really do anything. The Columbia Township Board of Trustees they just passed a rule saying there's absolutely no videotaping before or after a meeting; the Clerk must be notified; and there are no microphones allowed on the Board table. Now they passed that. Maybe it would stand up in court. Maybe not, but they made a decision. They tried to do something. We also need to start doing something. This is bullying, vindictive behavior. The issue is not whether it makes Ironwood look bad. The issue is... it's not true! It is factually incorrect, which as anybody who attends a meeting can clearly see. Thank-you."

"What I handed you is what a believe to be the relevant State law and the other two pages are basically the rules I believe that you were considering perhaps adopting equal to or exactly like the Parks & Recreation. I met with the City Manager and I went over this and I will basically go over it with you the same as I did with the City Manager." said City Attorney Dennis Cossi.

"In conclusion, I believe that these rules to be contrary to the Open Meetings Act." Cossi told the Commission. "And now I'll take you through my research, okay?"

He then cited portions of the Open Meetings Act.

15.263 Meetings, decisions, and deliberations of public body; requirements; attending or addressing meeting of public body; tape-recording, videotaping, broadcasting, and telecasting proceedings; rules and regulations; exclusion from meeting; exemptions. Sec. 3. (1) All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be permitted to attend any meeting except as otherwise provided in this act. The right of a person to attend a meeting of a public body includes the right to tape-record, to videotape, to broadcast live on radio, and to telecast live on television the proceedings of a public body at a public meeting. The exercise of this right shall not be dependent upon the prior approval of the public body. However, a public body may establish reasonable rules and regulations in order to minimize the possibility of disrupting the meeting.

"I've done research on this. I can't find any cases that specifically refer to these type of rules. The cases, though, are pretty clear that when interpreting this you should try to liberally construe this to encourage openness, etc.  So I am liberally construing these with that in mind. That is to say if you're not precisely sure you should fall on the side that we should be open with less restrictions. I did not, and have not researched the idea whether or not the Parks and Recreation Committee is a public body. I just assumed it was. At first I assumed it was a sub-committee, if you would, of the City, assuming it was created by resolution or motion and I haven't researched any old meetings or minutes to determine that. I also assume that they are appointed by the City Commission or the City Manager, and I would also assume that their function is to study parks and recreation in the City and make recommendations to the City Council for your either action or inaction. And they do so by making motions; adopt certain recommendations -- for a lack of a better way of saying it -- effecting public policy if you adopt them. Again, liberally construing this, I think they are a public body.  If they're not a public body, there is no reason for them to exist."

"This is a general, all encompassing law."

Cossi then reviewed the rules passed by the IP&RC. The first rule he discussed was Rule #1. Audio and video recordings may only be taken via fixed, free-standing stationary mics and cameras.

"For the life of me," Cossi said, "I couldn't see the relationship between a fixed mic or camera and one that isn't, in terms of the difference between the two, disrupting a meeting.  And, again I think -- at least as I understand it --  at least a tripod or whatever  with the camera turning and I see that essentially by my observations. Mr. Albert and the Globe and others turning around to take pictures isn't necessarily disruptive."

Cossi went on to say that people taking pictures in the past has never been disruptive to the meetings.

Cossi then questioned the second rule. Rule #2. No photos may be taken during the meeting except by officially-designated media.

Cossi pointed out that, in legal terms, the only officially designated media is so designated for publication purposes for official announcements. According to current Michigan law, municipalities are required to designate a print media where official announcements would be published.

He went on to say that the City cannot restrict who covers meetings.

Rule #3. No photos of the audience may be taken except by officially-designated media.

Cossi pointed out that this rule is exclusive and restricts the rights of citizens.

Rule #4. No photos, audio or video content may be posted to a third-party website such as YouTube.

Cossi said that posting videos, etc. to YouTube would not be disruptive to the meetings because they would have to be posted after the meetings. He also suggested that the rule would be unenforceable.

"Having said this, I don't want anyone to conclude that I'm taking sides in what I perceive somewhat to be maybe a personality conflict. I'm not taking sides. I think remedies for things that appear on other sites should best be pursued outside of the rules and regulations of the Open Meetings Act."

Mayor Burchell asked Cossi if turning a camera unto a person causes him discomfort, wouldn't that be a disruption of the meeting.

Cossi explained that he has been on television before and he feels awkward with the camera facing him, however when one attends a public meeting, cameras and audio recordings are a part of it.

This reporter pointed out that the City Commission previously established rules for the media. I asked if those rules were similarly illegal and unenforceable. I also asked if there was any investigation to determine if those rules were in violation of the Open Meetings Act. I explained that I am hearing-impaired and that many people have difficulty hearing what is being said at the meetings. I asked Mr. Cossi if he felt that our 15 year-old volunteer holding a microphone to his face was disruptive.

"He did that to me, and he did that to many people." Cossi responded, explaining that most people would flinch when someone comes at them with a microphone and most people would feel uncomfortable under those circumstances. "And, I think that is somewhat disruptive."

"But sticking a video camera in your face isn't?" I asked.

Cossi responded by saying the remedy for the microphone issue was to set rules that made citizens address the Commission at the podium which holds a stationary microphone. "And I don't think that was an unreasonable response to someone running around thrusting a microphone at people. People were flinching. People didn't like it." Cossi said.

In an effort to move the meeting along, Mayor Burchell moved on to the next agenda item.

EDITOR'S COMMENT: Having a volunteer hold a mobile microphone so that audience members can hear what is being said at a public meeting, according to our City Attorney, was disruptive. As a result, the previous City Commission imposed a rule that forced citizens wishing to address the Commission to stand at a podium on which a stationary microphone is mounted. The same City Attorney argues, however, that shoving a video camera in a person's face, in an  effort to embarrass and humiliate them, is not disruptive, and imposing a rule that insists that video cameras be stationary and left unattended would be a violation of the Open Meetings Act.