The dispositive issues in this case are whether the presidential selection procedure adopted by the University of Michigan Board of Regents violated the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., or the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq.
We find that defendant violated the OMA and the FOIA. Therefore, we affirm in part and reverse in part the Court of Appeals decision.
On April 28, 1987, Harold Shapiro announced his resignation as President of the University of Michigan, effective January 3, 1988. In May of 1987, the Board of Regents, consisting of eight members, appointed itself as the Presidential Selection Committee and began the process of choosing a new university president. The committee appointed Regent Paul W. Brown as chairman and formed three advisory committees to assist it: a
By the fall of 1987, the Presidential Selection Committee had compiled an informal list of 250 potential candidates to replace President Shapiro. No formal applications were submitted by the candidates themselves. Rather, most of the candidates were recommended by third parties, who advised the committee of the candidates' qualifications. The committee's administrative secretary compiled a notebook of information relating to each candidate, and the board members reviewed these materials to evaluate the various individuals. To reduce the field of candidates, the committee made a series of "cuts," narrowing the list from 250 to one.
The first cut reduced the number of candidates from 250 to 70. The Presidential Selection Committee entrusted Regent Brown with sole authority to make the first cut, and he did so after numerous telephone calls and meetings with the advisory committees and informal subquorum groups of regents.
After gaining thorough input from all the regents, Brown's first decision was largely an arithmetic function rather than a matter of judgment.
The second phase of cuts employed essentially the same procedure as the first. During this phase, the Presidential Selection Committee narrowed the candidate list from seventy to thirty. Again, Regent Brown telephoned individual regents, and all regents participated in the reduction process. Subquorum-sized groups of regents met to discuss the candidates and to reach a consensus regarding the desired individuals. One regent testified that candidates were rated, the ratings were tallied and circulated, and Brown discussed the results privately with each regent to insure that the list of thirty would be acceptable to the entire committee.
The candidates themselves made the third cut.
In March and April of 1988, groups of two, three, or four regents conducted private interviews in the candidates' home cities. Although the Presidential Selection Committee referred to these meetings as "visits," at least one regent conceded that, like any interview, these meetings were to assess and possibly recruit candidates.
Before these interviews, candidates informed the regents that they desired their candidacy to remain confidential by signing a form letter that the board had prepared in advance. Subsequently, the candidates and the groups of visiting regents met to discuss the position and the candidates' interests and qualifications. After these meetings, some regents submitted written reports of their impressions of the candidates to the other regents, while others telephoned Brown with their impressions.
The fourth cut followed a number of closed meetings held by the board to discuss the remaining twelve candidates, those "most seriously considered" by the Presidential Selection Committee.
On May 20, 1988, the board resolved to form a "nominating committee" to decide which candidates would be placed in nomination for action by the board. On May 24, 1988, before the nominating committee met, seven of the regents held a closed meeting to discuss the results of the interviews and to reveal their opinions regarding each of the remaining candidates. The board insisted that no voting took place at this time. It conceded, however, that, on the basis of a consensus, two of the candidates were preferred over the other three.
Immediately following this closed meeting, the nominating committee met, considered the entire candidate list, and decided that only two preferred candidates would remain. This was the fifth cut. After this decision and various informal discussions between committee members and the two remaining candidates, the nominating committee unanimously decided to recommend one candidate, Dr. James Duderstadt, to the board.
Booth Newspapers, Inc., doing business as the Ann Arbor News, and the Detroit Free Press, Inc., brought an action in Washtenaw Circuit Court, alleging that the Board of Regents had violated the Open Meetings Act and the Freedom of Information Act. Plaintiffs sought declaratory and injunctive relief against the procedures employed by the Presidential Selection Committee. Plaintiff sought to have the court compel the board to make available the information regarding persons considered for the presidency, the discussions among the regents of the respective qualifications of each individual, and the decisions of certain nonquorum committees as they narrowed the candidates. It also sought disclosure under the FOIA of the destinations to which individual regents traveled for the purpose of interviewing candidates.
The trial court denied all requested relief and granted defendant summary disposition. The Court of Appeals reversed in part and affirmed in part, finding that defendant had violated the OMA, but not the FOIA. 192 Mich.App. 574; 481 N.W.2d 778 (1992). Further, the panel enjoined defendant from further use of the procedure that had been utilized in selecting the university president and awarded plaintiff attorney fees and costs to be determined by the trial court on remand. Defendant filed an application for leave to appeal and plaintiffs filed an application for leave to appeal as cross-appellant. This Court granted both applications. 441 Mich. 881 (1992).
A. OPEN MEETINGS ACT
1. THE LEGISLATIVE INTENT
Courts are bound to discover and to apply the Legislature's intent, when interpreting statutory mandates. In re Certified Question, 433 Mich. 710, 722; 449 N.W.2d 660 (1989). The legislative intent questioned in the instant case concerns the degree of accessibility the Legislature intended to afford the general public in observing the decision-making processes of public bodies.
During the late 1960s, Michigan's Constitution and a patchwork of statutes required accountability and openness in government.
To rectify the ineffectiveness of the 1968 statute, legislators introduced bills to comprehensively revise and substantially improve the law. The current Open Meetings Act resulted from these legislative efforts.
2. THE OMA'S PURPOSE
Yet another fundamental rule of statutory construction is to examine a statute's purpose as evidenced by the Legislature. In re Certified Question, supra at 722. In the instant case, the OMA's legislative purposes were to remedy the ineffectiveness of the 1968 statute and to promote a new era in governmental accountability. Legislators hailed the act as "a major step forward in opening the political process to public scrutiny." 1976 Journal of the House 2242 (June 24, 1976, remarks of
A thorough examination of the legislative intent and purpose places a statute in its historical context and aids a court in interpreting the statute's text. When courts interpret this or any other statute, they must look to the plain meaning of the particular law in question. Owendale-Gagetown School Dist v State Bd of Ed, 413 Mich. 1; 317 N.W.2d 529 (1982). In the instant case, the legislative reforms during the 1970s resulted in an OMA with broad inclusive language that required a public meeting for "all decisions of a public body" and "[a]ll deliberations of a public body constituting a quorum of its members...."
The gist of our analysis is whether, on the basis of the OMA's plain meaning, the Presidential Selection Committee (a) constituted a public body that (b) made closed-session decisions and deliberations, and (c) conducted closed-session interviews in violation of the act.
(A) PUBLIC BODIES
The OMA defines a "public body" to include a
Consequently, a key determination of the OMA's applicability is whether the body in question exercises governmental or proprietary authority. Goode v Dep't of Social Services, 143 Mich.App. 756, 759; 373 N.W.2d 210 (1985). In this case, it is beyond question that the University of Michigan Board of Regents is a public body charged by law and financed by Michigan taxpayers to govern an institute of higher education.
The board, however, argues that Regent Brown's actions do not constitute that of a subcommittee
Therefore, we hold that the selection of a public university president constitutes the exercise of governmental authority, regardless of whether such authority was exercised by Regent Brown, the nominating committee, the full board, or even subcommittees. Accordingly, this individual or these entities must be deemed "public bodies" within the scope of the OMA. Having established the "public" nature of these bodies, we must now examine the precise actions taken by them and their disposition under the OMA.
Section 2(d) of the OMA provides:
The board bases its argument on the misconception that every term within the definition of "decision" is modified by the last two phrases ("on which a vote ... is required and by which a public body effectuates ... policy") (emphasis added). In other words, the board erroneously concludes that a determination or an action, for example, will only constitute a "decision" under the OMA if that activity is one "on which a vote ... is required and by which a public body effectuates ... policy."
This interpretation is substantially flawed, however, when one considers the third activity included within the definition — a vote. Under the board's construction, the definition of "decision" would include a matter "on which a vote ... is required and by which a public body effectuates
The board also contends that open meetings are only required when "formal" voting occurs. The defendant has once again misconstrued the statute. As currently worded, the OMA's plain meaning clearly applies to "all decisions" by public bodies. The act does not modify the word "vote" by the term "formal." If this provision were now read into the current OMA, it would resurrect the amended 1968 statute, which has been discredited by the Legislature. The board cannot read into the statute what the Legislature has seen fit to exclude.
Regardless of how the Presidential Selection
The only part of the decision-making process that occurred in public was the final step: Dr. Duderstadt's selection from a list of one. The Presidential Selection Committee did not make the decision to appoint Dr. Duderstadt publicly, it merely announced the decision publicly. Dr. Duderstadt's elevation to the position of university president was a fait accompli by the commencement of the public meeting held on June 10, 1988.
In sum, the board's actions must be considered closed session decisions under the OMA. Any other interpretation of its actions would contradict the act's letter and spirit. This Court's failure to recognize this fact would undermine the legislative intent to promote responsible and open government.
Although § 3(3) of the OMA requires a public body to hold all deliberations at an open meeting, § 8(f) does permit closed session deliberations "[t]o review the specific contents of an application for employment or appointment to a public office if the candidate requests that the application remain confidential."
The board maintains that this "application exception" permitted it to withhold the candidates' identities and to justify closure of discussions comparing the candidates' qualifications for the purpose of reducing the list of viable individuals. The board's deliberation, however, far exceeded the exemption's scope. The OMA exception permitting closed sessions to review the "specific contents" of an application would entail discussions about the applicant's qualifications on the basis of information contained in the application.
In the instant case, the Court of Appeals construed the "specific contents" exemption narrowly and held that the OMA permitted closed sessions only to review personal matters contained in a candidate's application. We agree. Considering the OMA's prodisclosure nature, the requirement to strictly construe exemptions and the mandate for open candidate interviews, it is reasonable to assume that the Legislature intended this exemption to be a limited compromise, allowing privacy rights to dictate in instances where boards were
With regard to the interviews, or "visits" as termed by the board, there is no statutory exception permitting a subcommittee to conduct closed interviews. On the contrary, the Legislature expressly mandated open interviews. In doing so, the Legislature must have recognized that candidates' identities would become public, and that it was in the greater public interest to know the qualifications of candidates for public positions and the hiring procedures of public officials.
Therefore, we hold that the Board of Regents is a public body that made closed session deliberations and decisions and held private interviews in violation of the OMA.
B. FREEDOM OF INFORMATION ACT
The Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq., protects a citizen's right to examine and to participate in the political process. It requires public disclosure of information regarding the formal acts of public officials and employees. This Court has stated that the act mandates "[a] policy of full disclosure...." Swickard v Wayne Co Medical Examiner, 438 Mich. 536, 543; 475 N.W.2d 304 (1991).
However, the FOIA provisions requiring disclosure are not absolute. The act outlines several
When interpreting the various FOIA provisions, we must again follow the statute's plain meaning. Owendale-Gagetown School Dist, supra. In the instant case, the Presidential Selection Committee asserts that the travel expense records of regents who met with various presidential candidates should be privileged under § 13(1)(a) of the FOIA. This exemption allows a public body to conceal public records containing "[i]nformation of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy." MCL 15.243(1)(a); MSA 4.1801(13)(1)(a).
As evident from the statute, under a plain-meaning analysis of § (13)(1)(a), two factors must exist to exempt information from public exposure. First, the information sought must be of a "personal nature," and, second, the disclosure of such information must constitute a "clearly unwarranted" invasion of privacy. Swickard, supra.
1. PERSONAL NATURE
In determining whether the information withheld is of a "personal nature," "the customs, mores, or ordinary views of the community" must be
There exists no custom, mores, or ordinary view of the community that would warrant a finding that the travel expense records of a public body constitute records of a personal nature. The board, however, asserts that the travel expense reports of the regents might lead to information concerning the candidates that is in fact personal (i.e., the actual names of those individuals considered in the presidential search). We find that the FOIA "personal nature" exemption does not prohibit the disclosure of information that could conceivably lead to the revelation of personal information. As the United States Supreme Court stated, when examining a disclosure exemption in the federal Freedom of Information Act similar to § 13(1)(a), the exception is "directed at threats to privacy interests more palpable than mere possibilities." Dep't of Air Force v Rose, 425 U.S. 352, 380, n 19; 96 S.Ct. 1592; 48 L Ed 2d 11 (1976).
If the board's arguments are upheld, they could lead to undesired consequences and precedents. Its arguments welcome abuse of this prodisclosure legislation by misconstruing the statutory exemptions. In short, the standard advanced by the board permits a party to assert a myriad of scenarios under which the disclosure of one particular type of information might lead someone to discover other material deemed "personal." By expanding the exemption to protect information that may or may not lead to the exposure of personal material, the board ignored the requirement that courts must construe FOIA exceptions narrowly.
C. CONSTITUTIONAL CLAIM
The board contends that application of the OMA to governing boards of public universities in the manner prescribed by the Court of Appeals violates the autonomy vested in such bodies by the Michigan Constitution. Const 1963, art 8, § 5. For the reasons discussed below, we reject that argument.
1. FAILURE TO PRESERVE CLAIM
The board first raised its constitutional claim in its appeal to this Court; the issue was neither presented to nor evaluated either by the trial court or the Court of Appeals. Issues raised for the first time on appeal are not ordinarily subject to review.
On the basis of an examination of the Open Meetings Act and the Freedom of Information Act, we rule that both acts were violated. Presidential searches at the state's public universities must be conducted with due regard to the OMA's requirement of open meetings for all public body deliberations, decisions, and interviews. Travel expense records connected with these searches are not exempt from an FOIA request.
Therefore, we remand this case to the circuit court for entry of a judgment providing injunctive relief and compelling disclosure in conformity with this opinion.
CAVANAGH, C.J., and LEVIN and BRICKLEY, JJ., concurred with MALLETT, J.
BOYLE, J. (concurring in part and dissenting in part).
I concur with the Court's conclusion that the University of Michigan Board of Regents violated the Open Meetings Act in its search for a new president.
Finally, I do not agree that the Freedom of Information Act was violated by redacting the final destination on the search committee's travel expense forms.
It is beyond question that the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., and the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq., were enacted by the Legislature to promote openness and accountability in government. As noted by the majority, the ultimate goal of the Legislature in enacting the OMA was to educate the general public regarding government decision making, while at the same time creating a responsible and competent public body. The success of the act is reflected in its high rate of support and compliance among a majority of public bodies at both the state and local level.
The Open Meetings Act requires that all meetings, decisions, and quorum deliberations of a public body take place at a forum open to the."
The compiling of a list of names, reviewing qualifications, and identifying a limited number of persons for interviews to further assess their capability and interest in the position, are tasks that are ministerial in nature and not "public business" within the purview of the OMA. Screening from the original inventory of 250 names, a list of thirty potential candidates who were more qualified than the others was not a public body meeting, deliberation, or decision effectuating public policy. Whether performed by administrative staff, a third party, or the Board of Regents itself, does not change the technical and qualitative nature of the task. At no time during this initial screening process was there any "decision" by any person or public body to eliminate or remove any person from the list of 250 potential candidates. Rather, the assignment involved the gathering and sorting of submitted names to locate those persons who might be best qualified for the position of president of the university.
Tapering the list from the thirty most qualified "potential" candidates to twelve "actual" candidates was executed by the candidates themselves and not through any action of a public body or official. These twelve candidates expressed an interest in the position and, when asked, requested that their preliminary candidacy remain confidential. Although no "applications" per se were submitted, a logical inference follows that when the potential candidates affirmed an interest in pursuing
Although § 8(f) enables a public body to meet in closed session to review the specific contents of an employment application, the second sentence of the same provision provides that all interviews by a public body for employment shall be held in an open meeting.
The President Selection Committee was not a committee empowered solely with authority to advise or make a recommendation to the full board because, as indicated above, the committee was "itself" the board. The committee therefore could not accomplish in subquorum groups what it was prohibited by the OMA from performing as a quorum public body. At the juncture in the process when the board conducted subquorum private interviews, deliberations, and decisions concerning the twelve applicants for employment, it violated the mandates of the OMA.
Similar to the Attorney General opinions concerning the division of a public body into subquorum committees, the Court of Appeals in Booth Newspapers, Inc v Wyoming City Council, 168 Mich.App. 459, 472; 425 N.W.2d 695 (1988), upheld the trial court's finding that the city council violated the OMA when it divided into subquorum groups to deliberate matters of public policy it normally would have been required to discuss at an open
In this case, there was no express finding of fact by the trial court that the regents' subquorum interviews and discussions were designed to circumvent the OMA's requirements. Conversely, several regents, including Regent Brown, testified that the interviews and subsequent feedback discussions were conducted in this format to comply with the act's subquorum mandates.
Read literally, the act entitles a public body to meet in closed sessions to review an advisory committee's recommendation of finalists or a candidate's application.
The majority opinion rests on the explicit premise that the prodisclosure purpose of the act requires broad application of the OMA to all phases of the public hiring process.
Having specifically considered and rejected the idea that "recommendations" by a committee or subcommittee of a public body concerning the exercise of government authority be included in the act's definition of a "public body," it can safely be concluded that the Legislature intended to exempt such entities from the OMA's public forum requirements. The public body could create such an advisory committee to maintain the confidentiality of preliminary candidates and to recommend a pool of finalists for its consideration. Although the OMA imposes no literal restrictions or reporting requirements on advisory committees, to effectuate the purpose of the OMA, the committee should provide with its recommendation reasons for its recommendation and the procedures and methods used in reaching it. OAG, 1979-1980, No 5788, supra, pp 1017-1018. As always, the public
I also disagree with the majority's conclusion that the OMA requires that a public body disclose the identity of a candidate yet allows it to meet in a closed session to review "personal matters contained in a candidate's application." Ante at 230.
For the above reasons, the OMA should be construed to grant a public body the power to refuse to disclose the identity of a preliminary candidate when confidentiality is requested and to permit the review and deliberation of the candidate's qualifications to occur in a closed meeting. If recommended as a finalist for the position, the candidate should be afforded the opportunity to withdraw before a formal public recommendation to the hiring body. Any candidate who consents to further consideration by the full public body must be deemed to have waived the right to privacy, yielding to the public's right to know the qualifications of the candidate and satisfying the act's requirement that where the public body reserves to itself the final decision for appointment to certain levels of employment, without exception, those interviews must be conducted in public.
The balancing of the public's interest in the qualities of candidates and in the process by which they are chosen, against the interest of the university in attracting the finest candidate for the position is best achieved by reading the act in the manner suggested.
The Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq., provides:
The act promotes a policy of full disclosure, Swickard v Wayne Co Medical Examiner, 438 Mich. 536, 543; 475 N.W.2d 304 (1991). However, the FOIA is not absolute and affords an exception from disclosure of "[i]nformation of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy." MCL 15.243(1)(a); MSA 4.1801(13)(1)(a). I agree with the majority that the exemptions must be narrowly construed and that the public body bears the burden of proving the need for the exemption. Ante at 232. However, I cannot agree with the determination that the information sought by the plaintiff newspaper was not of a personal nature and thus not exempt from disclosure in this situation.
The plaintiffs requested copies of all travel expense
As noted by Justice CAVANAGH in the lead opinion in State Employees Ass'n v Dep't of Management & Budget, 428 Mich. 104, 123; 404 N.W.2d 606 (1987), and quoted with approval by Justice RILEY in Swickard, supra at 546:
Although the release of a person's name, without more, is generally not considered an invasion of privacy, Justice RYAN in Kestenbaum v Michigan State Univ, 414 Mich. 510, 547; 327 N.W.2d 783 (1982), observed that such a predicament may exist and left "for another day the question whether, in certain unusual circumstances, ordinarily impersonal information might take on an intensely personal
The Court of Appeals upheld the trial court's finding that "disclosure of the regents' travel destinations would, with little further investigation, reveal the candidates' identities, thereby constituting a clearly unwarranted invasion of their privacy." 192 Mich.App. 574, 586; 481 N.W.2d 778 (1992). I agree. As previously recognized by this Court in Kestenbaum, State Employees Ass'n, and Swickard, the FOIA does not require blanket application without regard to the factual context.
Each of the twelve candidates, comprised of presidents of other universities and persons holding equally responsible positions, requested that their preliminary consideration as president of the University of Michigan remain confidential. The trial court found that disclosure of the regents' final travel destination was tantamount to revealing the identity of the specific candidate under consideration. Divulging information that easily led to the identity of the prospective employee was equivalent to releasing information that was "personal, intimate, or embarrassing" to the applicant, Swickard at 547. The fear of reprisal from a current employer or trepidation that "public knowledge of nonselection would stigmatize them as having been weighed and found wanting and thereby blight their future careers as educational administrators," 192 Mich.App. 587, was exactly the type of unwarranted invasion of privacy causing injury that the candidates sought to avoid. Thus, revealing information that would easily lead to the candidate's identity as an applicant for the position constituted a clearly unwarranted invasion of promised privacy. See Core v United States Postal Service, 730 F.2d 946 (CA 4, 1984).
The majority's fear that to rule otherwise in this
In sum, I would hold that the Open Meetings Act does not compel that information gathered in the initial presidential screening process be disclosed to the public, nor does it dictate the revelation of a candidate's identity without consent or before the scheduling of a public interview. Additionally, I would uphold the lower courts' finding
LEVIN, J., concurred with BOYLE, J., except with respect to part I(C).
RILEY, J. (dissenting).
Because I find the application of the Open Meetings Act
The majority refuses to examine the clear constitutional issue presented in the instant case because defendant did not raise the issue until appeal. The majority correctly notes that "[i]ssues raised for the first time on appeal are not ordinarily subject to review." Ante at 234. Nevertheless, the instant case presents a significant issue, which is necessary to the correct resolution of the case and may be resolved without further action. Hence, this Court has the discretion to review the constitutional issue. See, e.g., Dation v Ford Motor Co, 314 Mich. 152, 161; 22 N.W.2d 252 (1946); Perin v Peuler, 373 Mich. 531, 534-535; 130 N.W.2d 4 (1964); Felcoskie v Lakey Foundry Corp, 382 Mich. 438, 442; 170 N.W.2d 129 (1969).
The Michigan Constitution confers an independent governmental status on its public universities and their boards of education, and grants the boards the exclusive power to elect their presidents:
This Court has long held that "[t]he object of construction, as applied to a written constitution, is to give effect to the intent of the people adopting it." 1 Cooley, Constitutional Limitations (8th ed), p
Often, however, "[w]e cannot understand these provisions unless we understand their history...." Cooley, supra, p 132. If so, "to clarify meaning, the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished may be considered." Traverse City School Dist, supra at 405.
These traditional rules of constitutional construction are essential: "The literal construction of the words, without regard to their obvious purpose of protection, is to make the constitutional safeguard no more than a shabby hoax, a barrier of words, easily destroyed by other words.... A constitutional limitation must be construed to effectuate, not to abolish, the protection sought by it to be afforded." Lockwood v Comm'r of Revenue, 357 Mich. 517, 556-557; 98 N.W.2d 753 (1959). Thus, a thorough examination of the historical origins of the constitutional provision in question is indispensable to the proper disposition of the instant case and the integrity of the constitution.
The supreme law of the State of Michigan has long conferred a unique constitutional status upon
* * *
Hence, the Constitution of 1850 and its progeny
In other words, "the board of regents is made
Hence, "the Legislature may not interfere with the management and control of" universities, Regents of Univ of Michigan v Michigan, 395 Mich. 52, 65; 235 N.W.2d 1 (1975), nor may it "control the action of the Regents." Weinberg v Regents of Univ of Michigan, 97 Mich. 246, 254; 56 NW 605 (1893). Justice WILLIAMS distilled from our constitution and precedent that "[t]he Legislature cannot interfere in the management of the university. [Nor may it] prohibit [or] require the universities to take any particular action." 395 Mich. 92. In fact, "[t]he powers and prerogatives of Michigan universities have been jealously guarded not only by the boards of those universities but by this Court in a series of opinions running as far back as 1856." Eastern Michigan Univ Bd of Control v Labor Mediation Bd, 384 Mich. 561, 565; 184 N.W.2d 921 (1971).
On the other hand, the constitution clearly prohibits infringement of constitutionally enumerated regental power by the Legislature. Hence, this Court has held that although defendant was subject to the public employees relations act,
Similarly, in Bd of Agriculture v Auditor General, 226 Mich. 417, 425; 197 NW 160 (1924), the Court ruled that although the Legislature may attach conditions to funding, not only may the regents reject such appropriations, but those conditions that infringed upon the regents' management and control of the institution were unconstitutional:
Moreover, those cases permitting legislative interference with the regental power pitted one constitutional provision against another, and resolved the disputes by holding that the more specific power granted to the other branches of government
The Legislature, therefore, may not impose conditions on a board of regents that interfere with the supervision, management, or control of a university or that are related to its finances, property, or educational mission, and may only regulate university-related activities that have bearing on the general welfare and that arise from a constitutionally granted power.
In the instant case, the plain meaning of the constitution, combined with the historical circumstances surrounding its adoption, reveal that the intentions of its ratifiers and framers were to grant autonomous regental power over the selection of the university president. The constitution endows the regents with the exclusive power to "elect a president of the institution under its supervision,"
This is so because the procedures followed by defendant to select a president are a vital aspect of the "management and control of" the university. 395 Mich. 65. As this Court is well aware, procedure often determines result. The OMA and the FOIA certainly attempt to "control the action of the Regents" by dramatically altering the method by which the board must fulfill its constitutionally vested duty. Weinberg, supra at 254.
Similarly, the OMA and the FOIA strongly infringe upon the internal workings of a university by demanding the regents entirely rework their presidential selection procedures to meet their requirements. The regents vigorously argue that an open selection process will reduce both the quantity and the quality of available candidates. The record reveals that other regents from major Michigan universities concur. Not unlike this Court, the application of the OMA and the FOIA to the regents is simply beyond the realm of legislative authority.
Moreover, the constitution rejects legislative attempts to open the presidential selection process because it fails to include the informal presidential search process in its mandatory disclosure provision. Const 1963, art 8, § 4. Ratified concurrently with art 8, § 5, art 8, § 4 mandates limited public oversight over the universities: "Formal sessions of governing boards of such institutions shall be open to the public."
Similarly, the Address to the People stated that this provision was enacted to "insure that formal sessions of the governing boards of such institutions will be open to the public." 2 Official Record, Constitutional Convention 1961, p 3396.
Unmistakenly, the purpose of the provision was to bring within the constitution the then-recent practice of permitting public access to formal meetings. No evidence, however, suggests that the provision was intended or understood to mandate the exposure of the entire presidential selection process to public view, or to empower the Legislature to do so.
The significance of § 3 is realized by examining § 2(a), which defines "public body" as
The committee reported the dismal failure of the state-run public universities and the advantages of autonomous boards of education:
In any event, the plain meaning of the constitutional provision prohibits the application of the OMA and the FOIA in the instant case. Unlike the OMA, the constitution only mandates that "[f]ormal sessions" be open to the public. Sources contemporary with the adoption of the amendment reveal that "formal" is defined as "belonging to or being the essential constitution or structure ... following or according with established form, custom, or rule ... based on conventional forms and rules," while "session" is defined as "a meeting or series of meetings of a body (as a court or legislature) for the transaction of business...." Webster's Seventh New Collegiate Dictionary (1969), p 328; id. at 793. See also 37 CJS, formal, p 115 ("[o]f or pertaining to form, characterized by due form or order").
This definition comports with one drafted by the Attorney General:
Cf. Severson v Sueppel, 260 Iowa 1169, 1173-1174; 152 N.W.2d 281 (1967).
Meetings at which the regents follow established rules in order to formally transact business, therefore, must be open to the public. OAG, No 4676, supra. On the other hand, informal meetings need not be. The meetings at issue, therefore, were informal and need not have been open to the public.
"The manifest purpose of article 9, § 23 is to allow the public to keep their finger on the pulse of government spending." Grayson v Bd of Accountancy, 27 Mich.App. 26, 34; 183 N.W.2d 424 (1970). In the instant case, there is no doubt that the records of the expenditures by defendant must be open to public scrutiny in some manner. Hence, defendant must disclose that it purchased airline tickets, the price of the tickets, and other pertinent financial information. Defendant must release at least "summaries, balance sheets, and other such compilations which map out and correlate a myriad of financial transactions into a meaningful account." Id. On the other hand, whether a constitutional mandate exists which compels defendant to disclose the location of its travels is open to question. Cf. id. at 34-35 ("[i]t strains one's credulity to think that the framers of the Constitution meant to allow the public to inspect every receipt ... and every writing evidencing a receipt or expenditure").
In any event, where the board, while exercising its exclusive authority to select a president, reasonably determines that such disclosure significantly hinders its ability to fulfill its constitutional duty, then the longstanding constitutional protection of regental autonomy should outweigh the minimal interest of financial record disclosure of the destination of such trips. Hence, in the conflict between these two constitutional provisions regental autonomy triumphs.