Greetings from the “Laws Don’t Apply to Us” State!
Consumers have been pointing out that the Michigan Statewide Independent Living Council is operating in open violation of the Freedom of Information Act (FOIA) and the Open Meetings Act (OMA) for years.
Now we have a direct answer. Let’s unpack the SILC’s absurd arguments about why they do not need to heed input from the community they are funded to represent and why the law simply doesn’t apply to them. Read their (unsigned, undated) arguments in full below.
- SILC Argument 1: FOIA doesn’t apply to the SILC (no supporting arguments presented).
Reality Check: FOIA absolutely applies to the SILC, as the SILC itself has acknowledged since its inception. The SILC is a public body. The same standards that make it a public entity under the Open Meetings Act (which are acknowledged in their response) make it a public entity under FOIA. Even the Governor’s claim that his staff is exempt from FOIA cannot be rationally applied to the SILC because the SILC is not part of the Governor’s staff. The SILC is actually required to maintain autonomy. If the Michigan SILC is suggesting that they work for the Governor’s Office, the SILC is out of compliance with the requirements of the Rehabilitation Act. The SILC does not work for the Governor.
- RSA’s Technical Assistance Circular (2014 – PDF) states: “Section 705(a) and its implementing regulation stipulate that the SILC may not be established within a state agency, including the designated state agency (DSA) or designated state unit (DSU), and that the SILC must remain independent of the DSU and all other state agencies (34 CFR 364.21(a)(2)).”
When the Governor issued his most recent SILC Executive Order, consumers immediately raised red flags. The new Executive Order specifically noted placement of the SILC within the Governor’s Office, despite the requirement that the SILC remain autonomous. As Michiganders, it wasn’t hard to see what was going on: the Michigan SILC was establishing itself as another wing of the Governor’s Office in order to exempt itself from FOIA and the OMA. Right on cue, the Michigan SILC immediately closed all meetings to the public (except the four annually required by the Rehabilitation Act) and completely stopped responding to FOIA Requests.
- SILC Argument 2: The OMA does not apply to committees and subcommittees composed of less than a quorum of the full public body if they “are merely advisory or only capable of making ‘recommendations concerning the exercise of governmental authority.'”
Reality Check: Over the course of the past year, the Michigan SILC administratively re-labeled all of its committees as “advisory”. The SILC then restricted membership on its committees so that a quorum can never be reached (because a quorum would trigger open meetings requirements). The problem is that these committees are not advisory. The committees in question directly participate in the SILC’s policy-making decisions. Re-naming a committee advisory does not make it so.
From the Attorney General’s Handbook:
Advisory committees and the OMA – the OMA does not apply to committees and subcommittees composed of less than a quorum of the full public body if they “are merely advisory or only capable of making ‘recommendations concerning the exercise of governmental authority.'” Where, on the other hand, a committee or subcommittee is empowered to act on matters in such a fashion as to deprive the full public body of the opportunity to consider a matter, a decision of the committee or subcommittee “is an exercise of governmental authority which effectuates public policy” and the committee or subcommittee proceedings are, therefore, subject to the OMA.
…All decisions must be made at a meeting open to the public – the OMA defines “decision” to mean “a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy.” The OMA provides that “[a]ll decisions of a public body shall be made at a meeting open to the public,” and that, with limited exceptions, “[a]ll deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public.”
The SILC is well aware of their obligations, having solicited and obtained legal opinions throughout the years. Direct Quote from SILC Executive Team Minutes dated October 26, 2015:
“Open Meetings Act Legal Opinion: All committee meetings are open to the public and must have an opportunity for public comment during a meeting.”
Major decisions that directly affect the lives of Michiganders with disabilities are being made behind closed doors without any opportunity for public input until months after decisions have been made. Some of those decisions are dually-authorized at the committee level and by the full Council, but many are not.
- Example: The SILC is responsible, by law, for collecting consumer input and using it to develop the State Plan for Independent Living (SPIL). The SILC has appointed authority for this responsibility to its SPIL Writing Team. The SPIL Writing Team meets behind closed doors to review consumer input, develop, and draft the SPIL – a document that is legally required and which guides Michigan’s entire multi-million dollar Independent Living Program for three years. The SPIL Writing Team – one of many committees developing policy for the SILC that requires a vote by members of the public body – meets secretly without any oversight or public input. The impact is real: consumer input is conspicuously absent from the SPIL that is sent to and approved by the full Council. The same is true of the SILCs other committees. They simply are not advisory committees, and to suggest otherwise is disingenuous and self-serving. Read case law explaining why this practice violates the Open Meetings Act.
SILC Response to Public Comment November 2016 Quarterly SILC Business Meeting:
- Download the original Word document posted to MiSILC.org
There were several serious items put before the council during public comment. The council strives to evaluate all public comment received. There were three major areas addressed by members of the public, violations of the Freedom of Information Act (FOIA), violations of the Open Meetings Act (OMA) and concern about budgetary spending. Each item will be addressed separately.
Freedom of Information: After a requested Division Legal review by the Attorney General’s office, a determination was made that SILC has a “strong basis for exclusion from FOIA in light of SILCs placement within the Executive Office of the Governor’s and its source of funding.” The SILC has been located under the Governor’s office since it’s origination.
Open Meetings Act: SILC is considered a public body and is subject to the Open Meetings Act. SILC strives to ensure its quarterly business and public hearings comply with the OMA. What is at dispute from public comment is SILCs Sub-Committees meetings. Attorney General Schutte’s advisory document to public bodies speaks to this:
Advisory committees and the OMA – the OMA does not apply to committees and subcommittees composed of less than a quorum of the full public body if they “are merely advisory or only capable of making ‘recommendations concerning the exercise of governmental authority.'”
In order to honor public comment, SILC has requested a division legal review to ensure that SILC’s committee structure is compliant with the Open Meetings Act. Upon receipt of the review, SILC will immediately make policy adjustments if required.
Budget Spending: The Michigan SILC has made no payment, purchased services, scheduled payment or generated a financial expenditure to the following:
- Disability Network West Michigan
- Sabo Public Relations
- Warner, Norcross & Judd
SILC financial decisions are made by a full council vote following its corporate by-laws as well as state and federal law.