An Oakland County lawmaker has proposed amending the state constitution to require that when the governing boards of Michigan's public universities hold “meetings” they be open to the public. Under current law only “formal sessions” of the university boards must be held in public.

The amendment is contained in House Joint Resolution O, sponsored by Rep. Martin Howrylak, R-Troy. To become part of the constitution it must be approved by voters in a statewide general election, and for that to happen it must receive “yes” votes from at least two-thirds of the House (74 votes) and the Senate (26 votes).

“I suspect that, if they realized university boards are not subject to the Open Meetings Act, it would be a real headscratcher for most Michigan voters,” said Howrylak. “I think the only reason this resolution might not pass would be due to politics. In my opinion, if legislators only voted their consciences, we could count on it passing.”

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University boards are not subject to the Open Meetings Act because the Michigan Constitution gives universities a large measure of autonomy. The Legislature’s ability to directly influence the policies of state universities is largely limited to state appropriations. A 1999 Michigan Supreme Court ruling, specifically pertaining to the Open Meetings Act, clarified this.

In that case, Federated Publications, Inc. vs The Board of Trustees of Michigan State University, a newspaper group (the Lansing State Journal and The Detroit News) argued that the university board’s meetings pertaining to the hiring of a new MSU president should be subject to public disclosure under the Open Meetings Act. The high court disagreed, saying that due to universities having been treated separately in the state constitution, they were not subject to the Open Meetings Act.

“The Open Meetings Act had not yet been enacted back in 1963-64, when the state Constitution was drafted,” Howrylak, said. “So when those who drafted the constitution specified that university boards must hold public formal sessions, what they were actually saying at the time was they thought universities needed to be held to an even higher standard of transparency than other governmental entities.”

“Years later, [in 1976] the Open Meetings Act was adopted and it served us well until the 1999 Federated Publications ruling,” Howrylak continued. “Since then, however, university boards have not felt compelled to follow the Open Meetings Act. What we want to say with this resolution is that just because the constitution gives universities a good deal of autonomy, that does not mean that they should be autonomous from the law.”

HJR O was introduced on April 14. It was approved by the House Oversight and Ethics Committee on June 18 and sent to the full House. However, it is not a certainty that the resolution can gain enough support in the chamber for the two-thirds supermajority required for passage.

"This is a worthy effort," said Michael Van Beek, the director of research with the Mackinac Center for Public Policy. "Because taxpayers fund public universities, they deserve the right to monitor how well their money is being managed, just like they do at school board and city council meetings."

Many institutions and people within the higher education community oppose HJR O, including the association known as the Presidents Council, State Universities of Michigan, which represents university presidents.

“We don’t exclude the public from our formal sessions,” said Michael Boulus, executive director of the Presidents Council. “We believe those who wrote the constitution knew what they were doing and we don’t think the public sees a need to amend it. The constitution provides for accountability while also allowing university boards to manage their own affairs.”

“If this is bad public policy, then what are the legislative caucuses all about?” Boulus continued. “When the House Republicans expelled Rep. Cindy Gamrat [R-Plainwell] from their caucus, Speaker [Kevin] Cotter argued that better policy was made in a room where members can openly speak their minds. We’re opposed to having informal sessions of university boards open to the public for the same reason. Universities are somewhat unique. That’s why the constitution has a separate section for universities”

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See also:

Modernize the Open Meetings Act