On at least three occasions so far this year, Leelanau County District 7 Commissioner Melinda Lautner has been seen passing notes to Clerk Michelle Crocker or Chief Deputy Clerk Jennifer Zywicki during public meetings. According to the Michigan Press Association (MPA), this violates the spirit of the Michigan Open Meetings Act (OMA) and may have broken the law.
Lautner always sits next to whoever is preparing meeting minutes in the board of commissioners meeting room at the far-left end of the table, closest to the side of the building facing northeast.
Lautner has been seen passing notes several times, including to Crocker during interviews with candidates for the interim administrator position at a March 19 board of commissioners special session; to Crocker during interviews for the county administrator/ chief financial officer (CFO) position at a May 30 special session; and, most recently, to Zywicki during the July 9 executive session.
On each occasion, Lautner initiates the note passing. The commissioner makes sure to pass the note discreetly, out of view of the audience and anyone sitting at the smaller table directly in front of the commissioners.
When the Leelanau Enterprise requested these written notes under the Freedom of Information Act (FOIA), the newspaper received two of these three notes that were exchanged. These notes both contain mundane content: Lautner asking the clerk for the date of a followup interview, and the chief deputy clerk when a then-ongoing presentation started.
Notably, however, county FOIA Coordinator Katie Smielewski did not include the note exchanged on March 19 while the board was interviewing candidates for the interim administrator position, as neither person provided it. Crocker told Smielewski: “There is no note from Commissioner Lautner” from this date.
Crocker said this despite clear video evidence of Lautner passing a note to Crocker near the 2:34:00 mark of a recording of this meeting. Lautner slides a note to Crocker, appears to look at her to see her reaction, shakes her head and mouths several inaudible words, and then retrieves the paper, neatly folds it in half, and places it inside a folder. The video does not give a clear view of Crocker.
This took place while the board of commissioners was interviewing James Kiessel for the position of interim administrator. Kiessel was undersheriff at the Leelanau County Sheriff’s Office at the time of the interview. He is still serving in that capacity, as he was unsuccessful in his bid to become interim administrator. Instead, the position went to former Traverse City Mayor Richard Lewis.
All the meetings mentioned above were livestreamed on YouTube by the county, so video evidence of the note passing exists. Moreover, written notes exchanged during a meeting can be requested by anyone under FOIA.
Newspaper staff contacted the MPA to determine whether passing notes during a meeting breaks the law. According to Jennifer Dukarski, MPA general counsel, the passage of notes is not explicitly prohibited, but Michigan law prohibits private communications that are deliberations towards a decision on public policy without notifying the public.
“The Open Meetings Act exists to promote transparency in our government and especially in the deliberations and decisions made by our public bodies. When members of a public body use text messages, social media platforms or even paper notes to bypass public discussion, it inherently violates the spirit of the Open Meetings Act. When it is done to help facilitate a decision, it violates the letter of the law,” Dukarski said.
Dukarski said that if the contents of a paper note somehow constituted deliberations during a public meeting, it would likely be found to violate the OMA in court. She cited a 2008 case in the United States District Court for the Western District of Michigan.
Lautner was one of five commissioners who voted to enter contract negotiations with Lewis on March 19, rather than Kiessel or one of the three other candidates they interviewed. If the note Lautner exchanged with Crocker on video earlier in the meeting influenced her decision, then she violated the OMA.
Since Lautner did not provide the requested information to the county’s FOIA coordinator, as she is legally required to do, the Leelanau Enterprise asked her for it directly. She responded via email the evening before publication.
Lautner said that she found the folder that she placed the note in, but as of the time of writing, she still has not provided the note to the newspaper. She claims that she was trying to let Clerk Crocker know that the commissioner sitting next to her, Jim O’Rourke, was texting county employees during the meeting.
“I think it may have been me letting the clerk know that Jim O’Rourke was receiving text messages from employees during that portion of the interview. I was very concerned, but the clerk just shrugged. I guess thinking that no one cares,” Lautner said in an email. “Definitely an OMA (sic) because they are texting about Jim Kiessel.”
Lautner claims to have seen O’Rourke receiving text messages about Kiessel from a specifi c county employee who she identifies by name “out of the corner of (her) eye” during the March 19 special session.
MPA general counsel also noted that electronic communication between members of a public body during a public meeting can be considered deliberation in violation of the OMA, citing a 2018 Michigan Court of Appeals case.
For his part, however, O’Rourke denies engaging in deliberations via text messages at any county board meeting. He said that whenever he uses his phone during meetings, it’s to gather information online. For example, he claimed to have looked up bills supported by Senator John Damoose (R-Harbor Springs) during Damoose’s presentation to the board last week.
“No, I was not texting about Kiessel,” O’Rourke said. “I’ve said before (in meetings) that any notes that are passed need to be part of the record. Before I said that, notes were being passed a lot of the times.”
Indeed, O’Rourke had asked that the note exchanged between Lautner and Crocker at the May 30 special session be added to the meeting minutes during commissioner comment the following day. Crocker responded by reading the contents of the note aloud.
In the note that was provided to the newspaper by Smielewski, Crocker told Lautner that follow- up interviews for the administrator/CFO position would be held June 10.
