Attorney: Emergency manager in Detroit could violate sunshine laws, allow for backroom deals

By Evan Dixon 
Columnist & Attorney

Evan Dixon

For better or worse, it looks like Michigan’s governor will soon appoint an Emergency Manager for the City of Detroit.  Some are proclaiming Kwame Kilpatrick’s conviction brings an end to the “culture of corruption” that has plagued the City for so many years.  Maybe.  Maybe not.  But one thing is for certain, if it is true that “power corrupts and absolute power corrupts absolutely” then the citizens of Detroit (and the entire state, for that matter) will have to be more diligent than ever to keep tabs on what this new emergency manager – with unprecedented power over Detroit’s finances – is doing.

This is where the Open Meetings Act (MCL 15.261, et seq) and the Freedom of Information Act (MCL 15.231) come into play.  These laws were intended to ensure tranparency in government, to make governmental decision making open for the world to see and protect against malfeasance and secret/backroom “sweetheart deals” by those in power.  I suspect that the emergency manager may claim exemption from the requirements of these laws.

This is where concerned citizens and determined journalists must step forth and demand accountability by holding the EM to the requirements of the Open Meetings Act and the Freedom of Information Act.

The authority to appoint an emergency manager is based upon the controversial “Local Financial Stability and Choice Act” of 2012.  (MCL 141.1541, et seq)*  Since this is a new law, there is no legal precedent for intepreting how it interfaces with the Open Meetings Act and FOIA.**

As citizens, we must demand open access to the deliberations and decision making process if and when an emergency manager is appointed for Detroit.

* This law, which goes into effect March 28, 2013, replaces the old “Local Government and School District Fiscal Accountability Act” (Act 4 or 2011, MCL 141.1501, et seq), which was rejected by Michigan voters in 2012, and repeals the “Local Government Fiscal Responsibility Act of 1990”.

** Last year, in the case of Davis v Detroit Financial Review Team, the Michigan Court of Appeals ruled that a “financial review team” under the old emergency financial manager act is not a public body under the OMA because it is not a “governing body” as the OMA uses that term. Therefore, the review team was not statutorily required to comply with the OMA. And the state treasurer, whether acting in his or her executive capacity or as a “one-man” committee of a financial review team, is also not a “public body” for purposes of the OMA.  But there is, IMHO, a key distinction to be made between “reviewing” and “managing”. Managing is– for all intents and purposes in this case– “governing” as defined in the OMA.

Evan Dixon, an attorney in Hancock in the Upper Peninsula, is a 1982 graduate of Cass Tech High School. After earning a bachelor’s degree from Wayne State University, Dixon served as a community organizer in Detroit and later graduated from the University of Detroit Law Schoodl. 

Contact Dixon at [email protected]

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