To view or leave comments on this story, click HERE.
(Editor’s Note: Curt Peterson writes that he believes last week’s Peninsula Township Board meeting violated the Open Meetings Act. Read on for his thoughts. -jb)
At the regular meeting of the Peninsula Township Board on Tuesday, August 13, 2024, the Board deliberated in closed session in probable violation of the Open Meetings Act (OMA) by making a decision to have our Supervisor and Township attorney make unknown/unvetted recommendations to the Michigan Department of Agricultural and Rural Development Commission concerning Farm Market GAAMPS without openly discussing the action step (in an open session). GAAMPS refers to “Generally Accepted Agricultural and Management Practices.”
Old Mission Gazette is Reader Supported.
Click Here to Keep the Gazette Going.
What Happened at the Township Board Meeting on Tuesday
(Editor’s Note: A video of the August 13 Township Board meeting may be on the Township’s YouTube channel, although the videos are only available for a short time before being removed. -jb)
Agenda Item 13 reads as follows: “Potential closed session pursuant to MCL 15.268(1)(h) to consult with the township attorney regarding a confidential legal opinion pertaining to the Michigan Right to Farm Act and Farm Markets in the township. (Wunsch)”
At 3:06:00 into the meeting, Chris Patterson, an attorney with Fahey Schultz Burzych Rhodes, representing the Township, commented on the reason for authorizing a closed session. (Note: there were two closed sessions, Items 12 and 13, with 13 involving the Farm Markets/GAAMPS. -jb)
“That second case does have things related to the Right to Farm Act and positions about the Township Zoning Ordinance, including Amendment 201, the one that started creating retail and wholesale farm processors. But then in addition to that, so the opinion’s a little bit broader than just that legal case. I know there was a question about the basis of it. The reason it’s presented as a legal opinion and not just for specific litigation is that the Wineries against Old Mission Peninsula — the trial itself — also raised questions related to farm markets and GAAMPs, and particularly the farm market GAAMPs that are currently there.
“There’s also a question similar to the drone use as to exactly the line of preemption for purposes of the Township’s current zoning ordinance that’s being challenged in litigation. And so it requires us, or our request and our recommendation, is that the Township Board have those conversations with its legal counsel in a closed session so that we can maintain and try and find privilege so that those people that are making claims against the Township don’t otherwise have the confidential information.”
The Board then voted to go into closed session on these two separate cases.
At 4:29:10, the Board returned to open session.
Township Supervisor Isaiah Wunsch: “I believe we’ve got a motion coming out of closed session. Becky, would you like to make the motion?”
Township Clerk Becky Chown: “I would. I move to authorize the township supervisor and attorney to provide feedback on the Draft 2025 Farm Market GAAMPs to the MDARD Commission.” (Michigan Department of Agricultural and Rural Development -jb)
Trustee Rudy Rudolph: “Second.”
Wunsch: “Ok, we’ve got motion Chown, support Rudolph, all in favor…”
The motion passed unanimously, with Shanafelt, Wunsch, Sanger, Chown, Rudolph and Sanders voting in favor. (Achorn had been excused.)
There was no request for discussion, and no discussion occurred with respect to the motion in the open session.
Discussion Regarding the Open Meetings Act
Chris Patterson said that Item 13 is presented as a legal opinion, which is an exemption that allows a closed session. This information from FosterSwift.com clarifies the requirements for a legal opinion in closed session, namely:
“Can We Discuss Our Lawyer’s Opinion Letters in Closed Session?”
“Yes. Among the exemptions permitted by the OMA, Section 8(h) authorizes a public body to meet in a closed session to ‘consider material exempt from discussion or disclosure by state or federal statute.’ MCL 15.268(h).
“Material subject to the attorney-client privilege is exempt by statute pursuant to Section 13(1)(g) of the Michigan Freedom of Information Act. MCL 15.243(1)(g).
Michigan Courts have also confirmed that a public body may go into closed session to consider material subject to attorney-client privilege. Booth Newspapers, Inc v Wyoming City Council, 168 Mich App 459; 425 NW2d 695 (1988). However, the closed session must be limited to the discussion of confidential legal advice presented in a written legal opinion. The Court of Appeals in People v Whitney, 228 Mich App 230; 578 NW2d 329 (1998), explained the exemption as follows:
“It would be illogical to construe the attorney-client-privilege exemption as authorizing a public body to evade the open meeting requirements of the OMA merely by involving a written opinion from an attorney in the substantive discussion of a matter of public policy for which no other exemption in the OMA would allow a closed meeting. To avoid this illogical result, we conclude that proper discussion of a written legal opinion at a closed meeting is, with regard to the attorney-client privilege, limited to the meaning of any strictly legal advice presented in the written opinion. The attorney-client privilege exemption does not extend to matters other than the provision of strictly legal advice.
“Id. at 246-247. (Internal Citations Omitted). Thus, townships must not discuss any matters outside the legal advice presented in attorney-client privileged letter. Moreover, any ‘decision,’ (defined in part as any determination, action, vote or disposition), on public policy may not be made in the closed session. Put another way, no motions or board actions should be taken in closed session.'”
Analysis of Township Board Meeting Closed Session on Legal Opinion
There was a closed session discussion perhaps centered around the written legal opinion of Draft 2025 Farm Market GAAMPs, which would potentially conform to OMA requirements.
However, it is clear that a plan of action was discussed and agreed to — which is not allowed per OMA closed session requirements — because Supervisor Wunsch asked Clerk Chown, immediately out of closed session, to make a predetermined motion: “I believe we’ve got a motion coming out of closed session. Becky, would you like to make the motion?”
It appears that a violation of OMA has occurred, because an action decision to make a motion, and likely discussion about that subsequent motion, was made behind closed doors. Decisions of action items behind closed doors are not allowed and are illegal per State Statute of OMA rules.
Separate, But Perhaps More Disturbing
In addition to the possible/probable OMA violation, a separate and perhaps more disturbing situation is that Township Board members authorized one Board member and our township attorney to make recommendation(s) to the Michigan Department of Agricultural and Rural Development Commission on farm markets on the Old Mission Peninsula without any — I repeat, without any — input from citizens, operators of farm markets, and the more than 40 farmers in Peninsula Township.
Is it fair for just two people to make policy recommendations on behalf of Peninsula Township without any public input and a Board vote? No, it is not.
This is an unconscionable action by our Board members to circumvent public input. Is this the open and transparent government endorsed by the incumbent board members running for re-election?
Also Read…
SUPPORT YOUR INDEPENDENT LOCAL NEWSPAPER: I started Old Mission Gazette in 2015 because I felt a calling to provide the Old Mission Peninsula community with local news. After decades of writing for newspapers and magazines like the New York Times, Los Angeles Times, Family Circle and Ladies' Home Journal, I really just wanted to write about my own community where I grew up on a cherry farm and raised my own family. So I started my own newspaper.
Because Old Mission Gazette is a "Reader Supported Newspaper" -- meaning it exists because of your financial support -- I hope you'll consider tossing a few bucks our way if I mention your event, your business, your organization or your news item, or if you simply love reading about what's happening on the OMP. In a time when local news is becoming a thing of the past, supporting an independent community newspaper is more important now than ever. Thank you so much for your support! -Jane Boursaw, Editor/Publisher, Old Mission Gazette
To keep the Gazette going, click here to make a donation.
To view or leave comments on this story, click HERE.
What is sad about this is not one trustee saw the lack of transparency as problematic.
Will they give the public a chance to comment on this letter before sending it or will they keep it cloaked in secrecy so no one especially those of us with farm markets has a chance to
see it and agree or disagree.
How can they take a position on farm markets without a broad consensus. Sad state of government here but what we have come to expect.
Curt,
While I sincerely appreciate your opinion and input, I wholeheartedly disagree. Far from ignoring these allegations, I, along with the rest of the Board, have discussed them with township legal counsel, and in every case have been informed that they are baseless. The Township Board, that I sit on as a Trustee, is not acting in any untoward behavior. We have nothing to gain from it. However, we have much to lose as a Township if anything pertaining to our position in the WOMP lawsuit were to be disclosed. We are acting in good faith to represent the entire Township. The fact that one of the agenda items involved specific WOMP litigation (Business Item 13: Potential closed session pursuant to MCL 15.268(1)(h) to consult with the township attorney regarding a confidential legal opinion pertaining to the Michigan Right to Farm Act and Farm Markets in the township (Wunsch)), does call for closed session. The outcome of that closed session was an Open Session Motion and then a vote by quorum of the Town Board.
I have previously shared the contact information for our Township Legal Counsel. If you feel like you would prefer to schedule time with them to parle please reach out independently. https://fsbrlaw.com/practice-area/municipal/
We could go back and forth on this. If the town is sending a letter which is not a confidential letter to a public body then why should we not see that letter before it is sent to determine for ourselves if it impacts us or not.
Do you think those of us who have farm markets have to wait to see the letter when it is published.
I believe you are missing the point purposely. You also took a position and action without public discussion which as Curt points out runs afoul of the open meetings act.
Appreciate the response from Maura and have the following questions:
1. If GAAMP & farm stand discussions have ties to the WOMP lawsuit, why is the board discussing? Is there yet another potential lawsuit brewing outside of WOMP? Why not wait until the outcome of the WOMP lawsuit is known & specifics from Judge Maloney are given?
2. Why is the township supervisor the only farmer involved with giving input to the GAAMP issue? And, why is his participation not a conflict of interest?
3. All township lawsuits have an impact on our community thus residents have a right to know details. For past & current lawsuits against the township, the board has almost always held closed sessions with legal to discuss strategy as open meetings would have a detrimental effect on litigating or settlement. Not once had the board made the confidential discussions or documents public. Why then did the township board oppose WOMP’s motion to keep court settlement documents from the public especially after the court ruled the documents were marked confidential by both parties & doing so would impair its performance?
4. I am glad to learn you will be more transparent. The board just approved the Interlocal Agreement with Grand Traverse County where it will receive $25,000 for 5 years. That is wonderful news. Why was this not known before elections where park funding was an issue to many residents? I understand that it was not a done deal. However, I believe $25,000 was already included under the miscellaneous category on the budget which was balanced several months ago. How can that be?
Thank you in advance for your thoughts. I am looking forward to your role as supervisor & representing all interests.
I am also glad to hear of the $25k from the county to the township for parks. I think the Clerk has done a great job promoting parks. Unfortunately, the Clerk’s office recently had to hire additional part time clerical staff. Since staff expenses and parks are both funded from the General Fund, this comes out to a wash for the township. Perhaps when/if the township staffing is reorganized, then a decision can be made that the Supervisor, Treasurer, and Clerk – who already have full time jobs – should not be tasked with/volunteer for a position that is of essence functioning as a Parks Manager.
hollow promises before an election. who would have thought they would violate their own promises to be transparent right out of the gate.
Do not be fooled by their claim that this violates attorney client privilege. as soon as they submit it it is no longer protected. in fact it is most likely not even protected now. A letter written by the supervisor in response to a public request by the state MDARD is not protected and they know it.
Lou, I’m sorry you couldn’t be a part of the closed session meeting. The letter you are referencing is not even in existence yet. It would be helpful if you could hold off on making more misinformed comments until there is something to be commented on vs. a conversation the Town Board had with their legal counsel.
Community, there is more information and comments regarding this topic over on Nextdoor under Elections & Politics:
Maura Sanders
Elections and Politics
Old Mission Peninsula North
• 15 hr ago •
Peninsula Township Community,
Maura
did you or did you not come out of th session and pass a resolution to send a letter. or was I sleeping.
Maura,
I am sorry but your statement is disingenuous. The Board meets in a closed session to come up with a letter to MDARD regarding Right to Farm. Whatever the letter says will be made public by MDARD. Right to Farm not only impacts wineries but all farm markets on the Peninsula and throughout the state. And yet before you write the letter you do not ask for any farmer/citizen comments to help you arrive at a position.
The whole raison d’etre for the Right to Farm is to protect the farmers from people and Township officials who want to curtail their ability to farm and sell the product of their efforts. Instead of looking for ways to handcuff the farmers, you and we would be better served if you looked for ways to improve our ability to make a profit.
Question for Maura. A motion was made for the township supervisor & attorney to provide feedback on the Draft 2025 Farm Market GAAMPs to the MDARD Commission. What exactly is the “draft”? An explanation of that might clear things up. Thanks again.
Anne, great suggestion. Here is the link to the DRAFT:
https://www.michigan.gov/mdard/-/media/Project/Websites/mdard/documents/environment/rtf/2025-GAAMPs/Farm-Markets-DRAFT-2025-GAAMPs.pdf?rev=9004f8dbef0547ac9d610a4067ddc948&hash=28D237E3ED36C2D8F12222323C57C1EE
The draft is a draft of the 2025 proposed amendments to the farm market GAAMPs which allow farmers to do certain things on their farm markets. One example would be they could sell up to 50 per cent if they’re produce from someone else’s farm.