This article was originally published on Feb. 9, 2022, at 5 a.m. It now includes an update from Feb. 16, below.
The City of East Lansing and the East Lansing Public Schools Board of Education are making sense of a legal opinion from Michigan Attorney General Dana Nessel which holds that under the Americans with Disabilities Act (ADA), state and local boards and commissions must provide reasonable accommodations to qualified individuals with a disability who wish to participate in public meetings — including the option to participate virtually. This opinion covers both members of the public and board and commission members.
ELPS is still evaluating the opinion and what it means for meetings — including the possibility of a hybrid model to allow regular virtual participation. The City seems likely to handle accommodations on a case-by-case basis, according to emailed responses from Council members and City Manager George Lahanas.
The opinion is not binding for local boards and commissions — only state-level public bodies are now required to abide by the opinion — though Nessel said in a press release that “it is my hope that local boards will use this guidance and ensure fair access to public meetings for those who require appropriate accommodations as we continue to navigate our way through the pandemic.”
But in the press release, Nessel was skeptical that local municipalities couldn’t manage to provide this accommodation, pointing out how local governments successfully took on fully virtual or hybrid options during the pandemic.
Nessel’s opinion does not require local governments to offer hybrid options for every meeting, and requests for accommodations need only be considered on a case-by-case basis, per the ADA.
City Council members expressed enthusiasm for more transparency and accessibility, but the City will address accommodations on a case-by-case basis.
Mayor Ron Bacon and Mayor Pro Tem Jessy Gregg both told ELi over email that the City Attorney was looking into the matter.
“I personally would like to see broader autonomy for local municipalities to have more latitude in when and how we utilize virtual meetings with respect to OMA [Michigan Open Meetings Act],” wrote Bacon to ELi on Monday morning. “I have a specific proclivity to align on the side of public health and safety. In this protracted fight with Covid, it’s critical to protect the vulnerable members and family members who participate.”
Gregg told ELi, “I personally hope that this gives us more flexibility in the future.”
On Monday evening, Bacon sent a new statement which he identified as the City’s preliminary legal opinion. This new statement was identical to one City Manager George Lahanas sent to ELi on Tuesday morning.
The statement reads: “The City of East Lansing is committed to complying with the Open Meetings Act and the Americans with Disabilities Act. If the City receives a request for virtual meeting attendance as an accommodations request under the ADA, then the City will evaluate that request on a case-by-case basis, as contemplated by the Attorney General’s opinion. Neither the OMA nor the Attorney General’s opinion permit the City or its boards and commissions to hold fully remote meetings, as was permitted (with some restrictions) before December 31, 2021.”
After learning more about the situation, Council member Dana Watson told ELi over email, “[I]t sounds like the changes won’t be as far reaching as I had hoped for board members and commissioners who would like to choose virtual options for meetings. Sometimes, I wonder who is this for when we must return to in-person only.”
“Nessel’s opinion is helpful and we’ll be able to make good steps. Representation, health and safety are all important,” Watson concluded.
On Tuesday, Council member Lisa Babcock told ELi over email, “Any time we can involve more people in public conversations and make it easier for people to participate, we all win. I know this decision applies to state boards and commissions, but I will ask the city attorney how we can adapt the ruling to apply to East Lansing.”
Council member George Brookover did not respond to a request for comment.
ELPS Superintendent says it may take time to formulate plans but emphasized the district’s support of transparency and accessibility.
Superintendent Dori Leyko wrote to ELi on Monday and said that given the opinion was released on Friday, the district has had little time to formulate any specific plans.
“I can tell you that we are reviewing the opinion and exploring options for making our meetings fully accessible to those with disabilities as defined by Attorney General Nessel’s opinion letter,” Leyko wrote. “But I don’t yet know how that might look or if/how we will identify those individuals.”
She concluded that ELPS is “definitely evaluating our options as we, too, have goals around accessibility for all and transparency with our processes.”
School Board President Kate Powers and Trustee Debbie Walton both responded to ELi’s request for comment and noted that their opinions were their own and they did not speak for the entire Board.
“I think the district should do what we can to honor the AG’s opinion regarding open meetings and accessibility to them,” Powers wrote to ELi. “A light has been shined on this need because of the COVID-19 pandemic, but I would hope that we could consider the need to make our meetings as accessible as possible, for those needing accommodations, moving forward, as it is allowable by law.”
Powers said she welcomed discussing this topic with district staff and fellow Board trustees.
Walton told ELi over email that, “One of the few silver linings to come from this pandemic was the increased public engagement made possible by online meetings.”
She explained that the physical layout of the boardroom, the technology currently available in the district, and the other demands on the district’s technology team resulted in hybrid options being deprioritized.
“I’m hopeful that we might be able to find a solution to provide a hybrid option to our community,” wrote Walton. “The way I see it, the increased engagement, communication, and transparency that result from having an online option are good for everyone.”
Vice President Chris Martin told ELi over email that he supported the idea of making meetings more accessible to immunocompromised individuals.
“We worked out many of the technological issues of hybrid meetings to address the earlier stages of the Covid-19 pandemic, and I hope we can use what we have learned to ensure that our meetings continue to be inclusive and accessible moving forward,” wrote Martin.
Secretary Monica Fink considered the opinion and what it means for equity when responding to ELi over email.
“Through an equitable lens we know that there are so many overlapping areas that go beyond disability affecting accessibility in our community and this is a great time to address these barriers as well,” she wrote. “I would like to see the district continue to find ways to make our meetings more accessible and inclusive.”
Treasurer Kath Edsall, Trustee Elizabeth Lyons, and Trustee Terah Chambers did not respond to ELi’s request for comment.
Holding public meetings during the pandemic has posed some complexities in East Lansing.
Under the Michigan Open Meetings Act (OMA), public meetings are required to be held in a public venue, and only limited exceptions exist for entering a closed session that the public cannot see. Nessel confirmed in her opinion that the intent of the OMA is for meetings of government bodies to be held in-person in public spaces.
Early in the pandemic, boards and commissions were allowed to meet completely virtually, but that provision ended on Jan. 1, 2022. By that point, though, both the School Board and City had transitioned their meetings to in-person over the summer.
In early January, the City canceled all its meetings except City Council and extended that through Feb. 11. As ELi reported in late January, the City would not say who is responsible for making these decisions. School Board has continued to meet.
Currently, boards and commissions are still expected to meet in-person, but Nessel’s opinion provides for hybrid options for audiences and members, such as streaming meetings and allowing public comment from callers, not just those physically in attendance. City Council streams its regular meetings and allows the public to call in for public comment. School Board streams its meetings but comments must be made in-person.
Speaking on ELi’s podcast, Chuck Grigsby, who serves on the Human Rights Commission, mentioned that some local boards and commissions were struggling to reach quorum due to Covid concerns.
UPDATE [Feb. 16, 2022 at 2:35 p.m.]: The East Lansing Public Schools Board of Education dedicated part of its Board discussion to the issue of Michigan Attorney General Dana Nessel’s opinion on the Michigan Open Meetings Act.
The Board endorsed the idea of making meetings more accessible but acknowledged some possible difficulties, including accessing individual’s disability claims. While the Board could make public comment virtually available to all, Trustee Terah Chambers pointed out that trustees often receive offensive emails from individuals who do not reside in East Lansing.
No official decision on how public comment may or may not change was made.