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STATE OF MICHIGAN
COURT OF APPEALS


JAMES BERRYMAN and CONNIE HAYES, Plaintiffs-Appellants, v MADISON SCHOOL DISTRICT, MADISON SCHOOL DISTRICT BOARD OF EDUCATION, WALTER HILL, DEBORAH GRIFFITH, JULIE RAMOS, M. KYLE EHINGER, DAWN BALES, DAVID HALSEY, and MARK SWINEHART, Defendants-Appellees.

UNPUBLISHED February 22, 2007

No. 265996 Lenawee Circuit Court LC No. 05-001803-CZ

Before: O'Connell, P.J., and Saad and Talbot, JJ. PER CURIAM. Plaintiffs appeal as of right the trial court's order granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(10). We affirm. This case arose when plaintiff Hayes, a teacher for defendant Madison School District, told her superintendent that she was going to adopt a child from Guatemala and intended to take leave under the Family Medical Leave Act (FMLA), 29 USC 2601 et seq. She also suggested that she would take the leave as a paid absence, because she had accumulated paid leave time under the collective bargaining agreement. The administration decided that Hayes should only receive unpaid leave, so she filed a grievance that eventually worked its way before defendant school board. Plaintiff Berryman was the union representative who represented plaintiff Hayes throughout the grievance process, and the remaining defendants are the individual members of the school board. Before addressing Hayes' in an open meeting, the members of the board held a closed meeting. They assert that the only purpose of the closed meeting was to review a letter drafted by the district's legal counsel and make sure that the board members did not have any revisions that they thought were necessary. However, plaintiffs allege that the board members were visibly and actively engaged in conversation in the closed, but windowed, room. Plaintiffs further assert that another district employee was handed documents to photocopy before the issue was put to a vote, but the originals already had the signature of the board's secretary on them. When the board reopened the meeting, defendant Swinehart immediately began editorializing about the anticipated course of the proceedings, indicating that the board was denying the -1-


grievance. After prompting by the superintendent, Swinehart restated his position as a motion, and the motion passed. Plaintiffs then filed this suit, alleging that the action was invalid because the board's closed meeting violated the Open Meetings Act (OMA), MCL 15.261 et seq. Our review of this case is limited solely to the OMA issues, and does not address the validity of defendants' decision to deny Hayes' grievance. Plaintiffs first contend that the trial court erred by granting summary disposition to defendants. We disagree. We review de novo a trial court's decision to grant summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Pursuant to MCL 15.263 of the OMA, a public body, such as a school board, must meet publicly and its members must conduct their deliberations and reach their decisions in the public meetings. However, the requirement of open deliberations does not apply to a closed meeting conducted "to consider material exempt from discussion or disclosure by state or federal statute." MCL 15.268(h). Therefore, the school board members did not run afoul of the OMA if they closed the meeting "for consideration of a written legal opinion within the attorney-client privilege." Booth Newspapers, Inc v Wyoming City Council, 168 Mich App 459, 467; 425 NW2d 695 (1988). Additionally, the Michigan Freedom of Information Act provides that a public body may exempt from disclosure any "[i]nformation or records subject to the attorneyclient privilege." MCL 15.243(1)(g). The term "consider" in MCL 15.268(h) is not so limited that it required each board member to silently read the attorney's opinion letter and withhold all comment until the open meeting resumed. Instead, the statute allows the public body, or entity, to "consider" the legal opinion, indicating that the Legislature intended discussion and deliberation among the individual parts of the whole entity. MCL 15.268. In fact, "deliberating" is a defining component of a "meeting" convened under the OMA, whether open or closed. MCL 15.262(b); see also Moore v Fennville Public Schools Board of Education, 223 Mich App 196, 202; 566 NW2d 31 (1997). Plaintiffs argue that the duration of the closed session

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