Legal opinion on Taylor elected officials backpay

8/12/2019 Legal opinion on Taylor elected officials backpay

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M emorandumTO: Mayor Rick Sollars

CC: Amanda BanasFROM: John Martin

RE: Local Officers’ Compensation Commission FILE NO: 21206.00896

DATE: April 30, 2014________________________________

LEGAL OPINION

I have been asked to provide a legal opinion on whether monies are owed to former

elected officials because of the Local Officers Compensation Commission’s determination of

salaries of elected officials at its 2009 meeting, 1 because their determination included a

specific sunset date.

BACKGROUND

By way of background, it is my understanding that in 2009 the City Local Officers

Compensation Committee (hereinafter LOCC) met on Monday, December 14, to discuss the

compensation of all elected officials within the City. At that time, it was determined that

there would be reductions in the compensation of the Mayor, City Council, Treasurer, and

Clerk for the City. Specifically, at the December 14, 2009 meeting, it was determined that

the Mayor’s salary would be reduced by 15% to a dollar amount of $86,828.35. Council’s

salary would be reduced by 10% to amount of $12,317.40, Chairman for Council ’s salary

would be reduced by 10% to a dollar amount of $14,675.40, and the Treasurer and Clerk’s

salaries would each be reduced by 5% to a dollar amount of $64,602.85 each. Of particular

1 I provided an earlier opinion relative to this mater. However, that opinion was based on the belief that nomeeting had occurred in 2011 as is required by both State statute and City ordinance; however, it is myunderstanding that a Compensation Commission meeting was, in fact, held on December 21, 2011. As a resultof this fact my prior opinion is irrelevant and of no significance for purposes of the issue discussed here.



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importance is that according to the LOCC minutes and determinations, each of the

foregoing reductions in salary was to occur for the specific period of January 1, 2010

through December 31, 2011, only. It is worth noting that each of the motions to reduce

salary carried unanimously.

After the 2009 meeting took place and the reduction in salaries became effective,

the next scheduled meeting of the LOCC was to occur, pursuant to City Charter and State

law, on the next odd numbered year, 2011. In fact, the LOCC met on December 21, 2011.

At that meeting, the LOCC approved the agenda, approved the minutes from December 14,

2009 meeting, the nomination and election of Jerry Zumba as Chairman of the 2011 LOCC,

as well as several other business items, including resolving to provide a zero percent wage

increase for the salaries of all the elected officials within the City, including the City Council

Members, the City Council Chair, the City Council Pro Tem, the Treasurer, the City Clerk,

and the Mayor to be effective January 1, 2012 through December 31, 2013. In other words,

the salaries of all elected officials were to remain the same as they were on December 31,

2011. Though not known or realized at the time of the December 21, 2011 LOCC meeting,

notice for the meeting had not been posted prior to the meeting, as required by the Open

Meetings Act. 2

The LOCC met on January 31, 2012 to further discuss the compensation of all elected

officials within the City. Notice for this meeting was properly posted. At this meeting, the

LOCC recorded their prior resolutions concerning the compensation of the elected officials

and determined that there would in fact be further reductions to the then current

2 The failure to post notice of the meeting prior to the date of the meeting was inadvertant.Apparently the Clerk’s Office believed the Human Resources Department would post the requirednotice, while the Human Resources Department thought the Clerk’s Off ice would post the requirednotice.



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compensation of the Mayor, Treasurer, Clerk, and the City Council for the City. 3 Specifically,

at this meeting, it was determined that the Mayor’s salary would be reduced by 2% to a

dollar amount of $85,091.44. The Treasurer and Clerk’s salaries would each be reduced by

2% to a dollar amount of $63,309.96. Council salary was to be reduced by 20% to a dollar

amount of $9,853.60. Council Chair’s salary was to be reduced by 20% to a dollar amount

of $11,740. Likewise, the Chair Pro Tem salary was to be reduced by 20% to a dollar

amount of $10,324.80. Each of the foregoing salary reductions was to occur for a specific

period of January 1, 2012 through December 31, 2013, only. Each of the motions to reduce

salary carried unanimously.

As required by Ordinance, the January 31 st meeting was held within 45 days of the

December 21, 2011 meeting.

The Resolution from this meeting decreasing the compensation of the elected

officials in the City was filed with the Clerk on February 3, 2012. The City Council took no

action with respect to this Resolution within 30 days after the Resolution was filed with the

City Clerk’s office. 4

ANALYSIS

Pursuant to the City of Taylor, Code of Ordinances, Chapter 2 – Administration,

Article IV, Division 2, Local Officers Compensation Commission (hereafter LOCC), the LOCC

was created. As per the Ordinance, the LOCC is to determine the salaries of elected officials

in the City. Their determination is to be salary of the elected officials in the City unless the

3 The current compensation reductions were to be from those salaries established for the electedofficials by the Compensation Committee in 2009.4 The LOCC’s compensation recommendation was Agenda item #22 on the February 7, 2012 CouncilAgenda. However, a review of the February 7, 2012 Council meeting clearly indicates that the itemwas removed from the Council Agenda at the time the Agenda was approved by Council thatevening.



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Mayor and City Council by resolution adopted by two-thirds of the members elected to the

City Council and serving shall reject them. Id. §2-200. Unless rejected by the City Council,

the determination of the Commission shall be effective 30 days following the filing with the

City Clerk of such determination. Id. In case of rejection, the existing salary shall prevail.

Id.

Pursuant to the ordinance, the LOCC may meet for up to 15 session days; the session

days must initially take place in an odd number year. Id . at §2-201. Once the initial

meeting has taken place, the LOCC shall make its determination within 45 calendar days of

that meeting. Id. The majority of the members of the Commission shall constitute a

quorum for conducting the business of the Commission. Id. The Commission shall take no

action or make the determination without a concurrence of the majority of members

appointed and serving on the Commission. Id.

Because the LOCC was created by way of City Ordinance, it is a “public body” and

must adhere to the Michigan Open Meetings Act (Act) (MCL §15.261, et seq.). The Act is

designed to require public bodies to open their meetings to the public, with notice required

to that end. Arnold Transit Co. v. City of Mackinac Island , 99 Mich App 266, 274; 297 NW2d

904 (1980). A court has discretion to invalidate a decision made in violation of the OMA if

it finds that violation impaired the rights of the public under the OMA. MCL §15.270(2);

Morrison v. City of Lansing , 255 Mich App 505, 520; 660 NW2d 395 (2003). However, one

cannot simply allege an impairment of the public’s rights, but must, instea d, make specific

factual allegations demonstrating that the public’s rights were impaired. Knauff v. Oscoda

County Drain Comm’r. , 240 Mich App 485, 495; 618 NW2d 1 (2000).



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Here, the LOCC held its December 21, 2011 meeting fulfilling the requirement by

ordinance and state statute that the initial LOCC meetings are to occur in odd number

years. The meeting was attended by a quorum of the Commissioners. At that meeting,

several business items were discussed including, the acceptance of the agenda, the

receiving and filing of the minutes of the 2009 meetings, the nomination and election of the

2011 LOCC chairman, as well as several other items, including an initial resolution to

provide all elected City officials with a zero percent increase in compensation. A majority

of the Commissioners appointed and serving concurred in the resolution.

Because the LOCC was created by City ordinance, its meetings must be run

according to the Open Meetings Act. As a result, notice of any such meeting should have

been posted 18 hours before the time and date of the meeting. In this instance, notice of

the meeting was not posted. While it is true that the court has the discretion to invalidate a

decision made in violation of the OMA if it finds that violation impaired the rights of the

public under the OMA, one cannot simply allege an impairment of the public’s right, but

must, instead, make specific factual allegations demonstrating that the public’s rights were

impaired.

In this particular instance, the failure to post notice of the December 21, 2011

meeting violated the Act. However, the act of inadvertently failing to post notice of the

meeting was no more than a violation of a technical requirement of the Act. See Arnold

Transit Co., supra , at 274. As such, it is highly unlikely that any court would invalidate any

of the decisions made at the December 21, 2011 meeting, let alone all of them. This is

especially true given the fact that it is unlikely that it could be demonstrated that the

public’s rights were impaired. For the most part, the actions taken by the LOCC at its



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December 21, 2011 meeting were housekeeping type matters, i.e., acceptance of the

agenda, receiving and filing minutes of a prior meeting, nominating and electing a chairman

of the 2011 LOCC, etc. In fact, the one business item carried out by the LOCC at this

meeting that might not be considered a housekeeping matter would be the initial

resolution to provide all elected officials with a zero percent increase. However, the

transaction of this business item did not impair the public’s rights. This resolution was

simply an initial consideration with respect to the compensation for all elected employees.

The LOCC ultimately decided at its January 31, 2012 meeting that all of the elected City

officials should take a further reduction in compensation in the amount of 2%. Therefore,

the LOCC’s initial resolution at the December, 2011 meeting is of no relevance.

Following the January 31, 2012 meeting, the resolution concerning the

compensation for all elected officials was filed with the Clerk’s Office on February 3, 2012.

Because the City Council did not reject the determination of the Commission, the

determination of the Commission became effective 30 days following the filing with the

City Clerk. Because the determination became effective, the compensation of all elected

officials should have been decreased by 2% through December 31, 2013.

CONCLUSION

The December, 2011 meeting of the LOCC effectively initiated the process for

determining the compensation of all elected officials for the years 2012 through 2013.

Thereafter, the LOCC made its final determination to decrease the compensation of the all

elected officials within 45 days of their first meeting as required by ordinance. As a result,

the fact that the reduction in compensation for all elected officials with respect to the

Commiss ion’s 2009 meeting, expired as of December 31, 2011, is of no consequence.



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Following City Council’s failure to reject the LOCC’s recommendation, t he

recommendation to reduce the compensation for all elected officials in the City; the Mayor,

Clerk and Treasurer by 2% and the Council Chair, Council Pro Tem and City Council by

20%, should have become effective 30 days following the filing of the resolution with the

City Clerk. Moreover, the compensation of the elected officials in the reduction in

compensation was to be effective from January 1, 2012 through December 31, 2013.

However, the decrease in the compensation of the elected officials in the City was

apparently never implemented. However, given the length of time that has passed, I

believe it would be in the best interest of the City, and the elected officials affected, to

forego any attempt to recoup these monies.

Open.21206.00896.14000584-1

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Legal opinion on Taylor elected officials backpay