Written by Asher Leukhardt
February 7, 2019
BLOOMFIELD HILLS, MICH.— According to the Michigan State University First Amendment Law Clinic, the Oakland County International Academy Joint Steering Committee (J.S.C.), the International Academy’s (I.A.) primary governance and oversight body, is in violation of state open meetings law. Members of the 13-district consortium sending students and funding to world-renowned public high school have acted to correct violations. The MSU Law Clinic also raised concerns of the J.S.C.’s historically poor attendance leading to the invalidity of its decisions.
In holding closed-door, publicly unannounced meetings, the committee, which includes representatives from all 13 I.A.-funding school districts including Birmingham Public Schools, has perennially been in violation of the Michigan Open Meetings Act (O.M.A.), the MSU Clinic says.
“The International Academy’s Joint Steering Committee is in flagrant violation of the Michigan Open Meetings Act,” Director of the MSU First Amendment Law Clinic Nancy Costello said in a December 20, 2018 letter to I.A. Principal Lynne Gibson and J.S.C. Members. “For several years, the Joint Steering Committee has held meetings that are not open to the public and it has illegally conducted business, making budgetary, personnel, curriculum, and other school governance decisions without giving notice of its meetings to the public.”
The clinic first investigated the J.S.C.’s practices in 2014 when a client retained them after being denied entry into a meeting. Costello says she was under the impression that, after a letter was sent and action promised, that the problem had been resolved and the J.S.C. became compliant with state law. However, in October 2018, the same client contacted them to investigate claims that the J.S.C. had not opened its meetings and was not posting them publicly.
The student clinician investigating the I.A.’s O.M.A. violations, Emily Sosolik, suggests that the meetings were likely never public or announced.
“To the Clinic’s knowledge, the Joint Steering Committee (J.S.C.) meeting schedule was never posted publicly and the J.S.C. never conducted its proceedings publicly,” Sosolik said.
According to Sosolik, the only meeting where members of the public were present was the December 4, 2018 meeting attended by The Clinic’s representatives.
The Clinic noted that the J.S.C., intended to represent consortium-member school boards in I.A. governance, has delegated its powers to I.A. Principal Lynne Gibson, including executing at least one lease, as recorded in J.S.C. meeting minutes recently obtained under the Michigan Freedom of Information Act.
Gibson, who has served as the non-voting chair of the J.S.C. since 2006, responded when The Highlander contacted her, but as of the publishing of this article, has not agreed to comment on the O.M.A. violations.
On December 26, 2018, the Clinic received a response on behalf of the I.A. from Bloomfield Hills’ legal counsel.
“Your December 20, 2018 letter includes several assertions concerning the I.A., its member school districts, the I.A. Joint Steering Committee, the Bloomfield Hills School District and its employees,” Bloomfield Hills Schools’ attorney Robert Lusk said in the response. “We are not in a position to comment on the validity or context of these assertions. Moreover, given the I.A. Joint Steering Committee’s commitment to comply with the O.M.A. going forward, we do not believe such comment is necessary or appropriate. The next meeting of the I.A. Joint Steering Committee will be posted as required by the O.M.A., including on the I.A.’s website, and the next and future meetings will be conducted and documented consistent with O.M.A. requirements.”
Bloomfield Hills Schools (B.H.S.) Superintendent Robert Glass also announced that other changes would be made to make meetings more accessible for members of the public and efficacious.
“Superintendents will be primarily sitting on that [the J.S.C.] instead of assistant superintendents, which provides a stronger communication link to boards,” Glass said. “We’ll have the meetings in the evenings, and we’ll rotate the meetings around to the different consortium districts so that everybody has access across the spectrum.”
The Clinic, which works pro bono, was pleased with the reaction, however sent a letter on January 17 to the I.A. and J.S.C. representatives detailing what they believe remains specifically unaddressed, including the issue of potential revisions to the I.A. consortium agreement to alter the J.S.C.’s status as a decision-making public body.
“If the Joint Steering Committee is downgraded to an advisory committee with no decision-making authority,” the letter says. “It effectively would eliminate the chain of command and create a vacuum of decision-making power.”
No other group or post is allocated the same decision-making powers of the J.S.C., according to the current consortium agreement.
Other issues raised in the letter include whether or not steps would be taken to ensure that a majority of members, or a quorum, which, according to The Clinic, is required for their votes to be valid.
Glass, whose district previously led efforts to revise the consortium agreement said that the 13 member districts are no longer seeking to strip the J.S.C. of power or alter the design in any way.
“We want to be very clear on the point that we are not intending to change the language to make it less of a governance body,” Glass said. “The point was to adjust the document to reflect what we really have always done since the beginning of it. We really didn’t follow that document that closely. But it is pretty clear that it is a governance body, the way it’s written.”
B.H.S. is delegated additional oversight ability by the consortium agreement as the fiscal agent of the I.A.. The district has historically led I.A.-related efforts and has been particularly tied to the school, which was created in an effort led by former Bloomfield Hills teacher Bert Okma.
Glass says the efforts to revise the agreement began in 2014 after The Clinic sent their first letter. He avers that the past B.H.S. assistant superintendent for Human Resources and Labor Relations Christie Barnett, who has a legal education, advised Glass and member districts that the J.S.C. was not acting as a governing public body and long hadn’t, and therefore, should have its legal role altered to accommodate the longtime practices of the J.S.C.
Barnett worked through the end of her tenure in December 2017 to propose revisions of the J.S.C.’s role, however it was never formally introduced for approval, Glass reports. B.H.S. worked as late as October 2018 to push the revisions suggested by Barnett.
B.H.S. stopped promoting the change after The Clinic’s December 20, 2018 demand letter. Glass says the letter prompted a new legal review from attorney Robert Lusk.
“I sought outside legal counsel, and they said, ‘No, actually, that is more of a governing body, the way it’s written, and if it’s not functioning that way, it really should,’” Glass said. “We [B.H.S.] came into alignment with The Clinic’s interpretation and immediately wanted to comply with that.”
According to Glass, administrators from the consortium-member districts agreed to proceed as advised by Bloomfield Hills’ counsel Robert Lusk, which includes ceasing efforts to revise the agreement.
“What we decided to do as a group, as a consortium, was just to open the meetings up and run them the way they’re written to be run. That’s the simplest, most reasonable thing to do,” Glass said.
Costello believes this is positive progress, signifying that their work begeted the J.S.C.’s operation as mandated, and perhaps more effectively.
This is good if the I.A. Joint Steering Committee will go forward as a public body with public meetings. That is exactly what should happen,” Costello said. “Superintendents and deputy superintendents are the ones who should sit on this committee because they have true decision-making power.”
Despite praising the corrective efforts taken, she also views the insight into the protracted addressing of the O.M.A. violation as an indication that the law was knowingly and deliberately violated.
“The fact that there have been attempts to revise the Consortium Agreement to make the Steering Committee a non-public body all while keeping the meetings of the steering committee closed, would still indicate that I.A. officials were intentionally violating O.M.A.,” Costello said. “We know I.A. officials heard our complaints in 2014. They wanted to change it to legitimize the past illegal practices of keeping the meetings closed and the minutes out of reach of the public.”
Glass, who served as Birmingham Public School’s delegate to the J.S.C. from 2005 to 2008 said that during his time on the committee, he was not aware of its status as a governing body and felt that it was akin to a private principals meeting. This understanding, he said, was shared by other representatives and has continued until recently.
“Current practices have never been much of a governance board. It never conceived of itself that way, when I was on it I never conceived of it that way,” Glass said. “To me those [J.S.C. meetings] functioned a lot like a cabinet meeting.”
Glass said he didn’t understand the role of the J.S.C. when he sat on it. He held that oversight and decisions involving the I.A. were made by member school boards, not the J.S.C.
“At that time, to be honest with you, I never gave [who was doing the governing] a thought,” Glass said. “I definitely felt like I was advising. At each board would provide the governance. If I were looking at it a year ago, I would say the school boards really had a governance role. ”
Within recent years, consortium member school boards have approved the I.A.’s annual budget appropriations instead of the J.S.C.
Current Birmingham Public Schools J.S.C. member and Deputy Superintendent Rachel Guinn says she, too, was unaware that the J.S.C.’s practices violated law and were improper.
“I just didn’t know what I didn’t know, to be very candid. I was going to a meeting of a committee that I thought was just what I was supposed to be doing,” Guinn said. “I was not aware that they were to be open to the public.”
Additionally, Guinn says she, until receiving the letter from The Clinic, was oblivious to the committee’s responsibilities.
“I wasn’t aware that the J.S.C. was like a board meeting. I thought I was aware, but clearly there were aspects of my responsibilities I was not aware of,” Guinn said. “I really thought, honestly, that the purpose of the committee was to be an advocate and a partner with this group.”
Another concern of The Clinic in their letters is the lack of a quorum, or majority, of members at meetings. According to State of Michigan Office of Michigan Attorney General documents, a legitimate quorum must be present at a meeting for decisions made to be valid.
“For actions of a public body to be valid, they must be a majority vote of a quorum,” The Office of Attorney General’s O.M.A. handbook says. “Any substantive action taken in the absence of a forum is invalid.”
Costello reports that the J.S.C.’s chronic absence of quorum invalidated actions taken within those meetings, according to meeting minutes obtained under the FOIA in 2014.
“Out of those meeting minutes, we found numerous times where a quorum was not present but voting was still taking place,” Costello said. “In those cases, all those decisions would be invalidated because the votes weren’t taken with a valid quorum.”
From 2014 to 2018, meeting minutes show, a quorum was absent in 18 of the 20 J.S.C. meetings conducted.
Current Birmingham J.S.C. representative Guinn has missed at least 2 of the 8 meetings she may have attended, citing conflicts with her position’s primary roles within Birmingham Public Schools.
J.S.C. meeting minutes reflect that when a quorum was absent, the J.S.C. sought and operated with votes obtained via electronic means. According to the Attorney General’s Guide to the O.M.A., such votes are invalid as they occur outside of public view.
The Clinic still bemoans that the absence of a quorum has remained unacceptably addressed by I.A. consortium-member districts, and in its most recent letter demanded that rectifying actions take place.
Overall, Superintendent Glass admits, he’s glad The Clinic was persistent in their pursuit of J.S.C. O.M.A. compliance, and believes it corrected and improved the track of I.A. governance.
“Our attorney’s recommendation now is to just run it like the meetings specify, and that’s what we’re going to do. I feel good about that. It’s the right call,” Glass said. “I’m glad people stuck to their guns and didn’t stop– they kept fighting for what they believed in, and in the end I think we’re in a better place. I think it will make for better communication and better governance. I think it will be an improvement.”
Nevertheless, Costello remains skeptical of the J.S.C.’s and the I.A.’s activities occuring in the absence of transparency.
“So many questions loom. What decisions were made by the J.S.C. during these closed meeting years? Who was making those decisions?” Costello said. “Who can be held accountable for those decisions? Who was benefiting from those decisions?”
A version of this article appears in The Highlander’s February 15, 2019 issue on pages 1 and 2.
Asher Leukhardt has written for The Highlander for more than a year and a half, and is currently its opinion editor. He is reachable at firstname.lastname@example.org.